Crocker v. Interstate Packaging Company

Filing 36

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 2/12/20126. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PATRICIA A. CROCKER,

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Plaintiff,
v.

INTERSTATE PACKAGING COMPANY,
Defendant.

Civil No. 3:14-cv-2038
Judge Aleta A. Trauger

MEMORANDUM
The defendant, Interstate Packaging Company (“Interstate”), has filed a Motion for
Summary Judgment (Docket No. 23), to which the plaintiff has filed a Response (Docket No.
28), and Interstate has filed a Reply (Docket No. 32). The plaintiff has also filed a Motion for
Permission to File a Sur-Reply (Docket No. 34), and Interstate has filed an Opposition to that
motion (Docket No. 35). For the following reasons, the plaintiff’s Motion for Permission to File
a Sur-Reply will be granted, and Interstate’s Motion for Summary Judgment will be granted in
part and denied in part.
FACTS1
This case arises from the plaintiff’s employment as a customer service representative
1

Unless otherwise noted, the facts recounted in this section are drawn primarily from
Interstate’s Statement of Undisputed Material Facts (Docket No. 24), Ms. Crocker’s response
thereto (Docket No. 28-1), Ms. Crocker’s Additional Statements of Material Facts (id.), and
Interstate’s response thereto (Docket No. 31). This section also contains facts from Interstate’s
Motion for Summary Judgment and Memorandum of Law in Support thereof (Docket Nos. 23,
26), Ms. Crocker’s Response Memorandum (Docket No. 28), and Interstate’s Reply (Docket No.
32), that are not refuted or contradicted by the opposing party or the record. Where there is a
genuine dispute of fact, the court will construe the fact in the light most favorable to Ms. Crocker
as the non-moving party.
1

(“CSR”) with Interstate, a Tennessee corporation that manufactures and prints flexible
packaging, labels, bags, and pouches. Ms. Crocker alleges that Interstate failed to pay her
overtime wages throughout her employment, failed to provide reasonable accommodation for her
physical limitations after she injured her arm at home in December of 2012, and improperly
terminated her in April of 2013 after she requested leave for a surgery that she needed for her
injured arm.
I.

Ms. Crocker’s Employment as a Customer Service Representative
Ms. Crocker was employed as a CSR at Interstate from spring of 2011 to April 29, 2013,

when she was terminated. As a CSR, Ms. Crocker acted as the primary in-house contact for
certain customer accounts. When she was hired, Ms. Crocker spent two months in training with
other CSRs to learn to use Interstate’s computer system and how to properly enter customer
orders. Ms. Crocker also trained with employees in Interstate’s Purchasing, Production, Art, and
Estimating departments to become familiar with the overall production process before she was
assigned her own accounts as a CSR. Both before and after her injury in December of 2012,
Ms. Crocker was Interstate’s CSR for three customers: Nature’s Bounty, U.S. Tobacco, and
Coty.
As a CSR, Ms. Crocker interacted directly with her assigned customers – usually by
telephone or email, but occasionally in person at Interstate’s facility – to enter purchase orders
and to prepare quotes for printing jobs for labels or packaging. When placing an order, a
customer would submit a purchase order requesting a product covered by the existing contract
between it and Interstate or request a quote for a new product that was not covered by any
contract. In the first situation, a customer would place the order by preparing and forwarding a
purchase order form, which includes the quantity of product the customer is ordering, the unit

2

price for that order based on the customer’s contract with Interstate,2 and the customer’s
calculation of total order cost based on the quantity and unit price. When she received a
purchase order from a customer, Ms. Crocker would enter the data into Interstate’s customer
order entry system and verify the unit pricing for the job by reviewing the customer’s contract
with Interstate. If the unit price used by the customer to calculate the total cost of the order did
not match the contract price, Ms. Crocker would notify the customer of the correct price before
confirming the order.
When a customer would request a new product that was not covered by an existing
contract between the customer and Interstate, Ms. Crocker would prepare a quote for the order.
Preparing a quote required Ms. Crocker to gather information regarding the order – such as color
preference, liner type, size, delivery specifications, and any other special requirements – from the
customer so that she could send the order details to Interstate’s Estimating department for the
determination of a unit price. Ms. Crocker would then call a production meeting with the
managers from Interstate’s various departments – Art, Production, Sales, Estimating, and
Customer Service (including Ms. Crocker’s own supervisor, Joe Matt) – to discuss the order and
to gather additional information necessary for the calculation of a unit price. These meetings,
which were led by Ms. Crocker, would typically last thirty minutes to an hour. If, after the
meeting, the various departments determined that additional information was needed from the
customer to create an accurate quote, either Ms. Crocker or the Sales department would contact

2

It appears from the record that Interstate charged its customers according to unit prices
that varied depending on the volume in which the customer ordered a particular printing job.
Typically, therefore, if a customer ordered in a high volume, the unit price would be lower than
if the customer ordered in a lower volume.
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the customer to obtain the information.3 Once Ms. Crocker had all of the relevant information
for the order, she would prepare an initial quote for the job, which she would submit to the
Estimating department for the calculation of a unit price. After she received a price from
Estimating, Ms. Crocker would send the quote to the customer, who could either accept or reject
the price quote. If the customer accepted the unit price in the final quote, it would send in a
purchase order specifying the quantity it wished to order, the unit price for that quantity, and its
calculation of the total order cost, which Ms. Crocker would verify and enter into Interstate’s
system. If the customer did not accept the quote, Ms. Crocker would notify Sales or Estimating
for a decision on whether to adjust the unit price.
After a purchase order was accepted and the pricing confirmed, the order would proceed
through the production process. During production, which could take three weeks or longer,
Ms. Crocker would monitor the order’s status so that she could communicate with the customer
regarding the order. For example, if technical difficulties resulted in a product being shipped
later than originally promised, Ms. Crocker was responsible for informing the customer of the
delay and dealing with any additional issues.
The parties mostly agree on the general contours of Ms. Crocker’s duties as a CSR,
though they have not submitted any job description, training materials, or other company
documents that describe the CSR position or outline the duties and required skills for that
position,4 so it is difficult to reconcile the parties’ differing characterizations of those duties

3

Ms. Crocker estimates that, when these situations arose, she contacted the customer
75% of the time and someone from the Sales department contacted the customer the other 25%
of the time.
4

The transcript of Ms. Crocker’s deposition, filed by Interstate in support of the Motion,
notes that Exhibit 4 to the deposition was the job description for the CSR position. (Docket No.
27, 3:10.) Ms. Crocker’s testimony regarding Exhibit 4 is not, however, sufficiently descriptive
4

(which the court will not go into here). What is clear from the record is that one of Ms.
Crocker’s primary duties was “entering customer purchase orders and quotes, which occupied
about 65–75% of [her] time.” (Docket No. 31 ¶ 6.) It is also clear that, throughout the order and
production process, Ms. Crocker’s duties generally included communicating with customers,
attending pre-quote and production meetings, keeping notes during meetings, gathering
information regarding customer orders from customers and Interstate’s various departments, and
filling out various standard forms.
During her two years with Interstate, Ms. Crocker was a salaried employee and,
therefore, did not earn an hourly wage. Ms. Crocker’s starting salary was greater than $455 per
week and only increased from there, and her final weekly salary was approximately $800.
Ms. Crocker generally worked 40 hours per week but, occasionally, she worked more than that.
In those weeks in which she worked more than 40 hours, Ms. Crocker was never compensated
for the additional hours beyond her base weekly salary.
II.

Ms. Crocker’s Injury
On December 24, 2012, Ms. Crocker – who is left-handed – fell and injured her right

arm, fracturing her distal radius and ulna. Ms. Crocker went to the emergency room for
treatment, where she saw Dr. Brook Adams. During this visit, Dr. Adams allegedly told Ms.
Crocker that she could return to “light duty” at Interstate on January 15, 2013.5 On December

for the court to determine the contents of the job description, and the exhibits to Ms. Crocker’s
deposition have not been submitted in the record by either Interstate or Ms. Crocker.
5

Interstate argues that “what Dr. Adams told Plaintiff is hearsay and irrelevant.” (Docket
No. 31 ¶ 9.) To the extent that this evidence is offered as evidence of Ms. Crocker’s thenexisting state of mind, including her motivation for requesting “light duty” from Interstate when
she returned to work, it is an exception to the rule against hearsay and will be considered for that
limited purpose. Fed. R. Evid. 803(3).
5

26, 2012, Ms. Crocker informed Interstate that she had injured her arm and would be out of work
for “a couple of weeks.” Two days later, on December 28, 2012, Beverly Coleman – Personnel
Services Administrator at Interstate – sent Ms. Crocker a letter advising her of her rights and
status under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Interstate
placed Ms. Crocker on FMLA leave from the time she was injured until she returned to work on
January 15, 2013. Interstate also sent to Dr. Adams for completion U.S. Department of Labor
Form WH-380E, which certifies that an employee suffers from a serious medical condition and
describes the condition and amount of leave needed. Dr. Adams filled out and returned the form
to Interstate, providing the following instructions:
May work with no use of right hand: 1/15/13. May do limited work including
typing, but no lifting: 2/1/13. Estimated full return date with no restrictions:
3/11/13.
(Docket No. 28-1 ¶ 34.)
Ms. Crocker returned to work at Interstate on January 15, 2013. When she returned, Ms.
Crocker met with Ms. Coleman to discuss Dr. Adams’ instructions, and Ms. Crocker requested
an accommodation from Interstate for her injured arm. The parties do not agree on the extent or
exact nature of the accommodation that Ms. Crocker requested after her return (or even if she
made a request), but because this is summary judgment, the court must construe all disputed
facts in the light most favorable to Ms. Crocker as the non-moving party. According to Ms.
Crocker, she requested that Interstate place her on “light duty”, which, again according to Ms.
Crocker, would have required a reduction in the amount of typing and data entry that she was
required to do. (Docket No. 31 ¶¶ 9–10; Docket No. 28, pp. 11–12.) After Ms. Crocker’s return,
however, Interstate did not reduce her data entry workload, and her duties remained the same as
before her injury.
On January 22, 2013, a week after she returned to work, Ms. Crocker found that she
6

could not flex her right thumb and had lost some use of her right index finger. Ms. Crocker
again saw Dr. Adams, who recommended surgery. Ms. Crocker worked at Interstate until the
day of her surgery: January 24, 2013. Interstate again placed Ms. Crocker on FMLA leave
during her absence for this surgery, which lasted until January 30, 2013. When Ms. Crocker
returned to work at Interstate on January 30, 2013, she had a hard cast on her right arm that
extended from her hand to her elbow. According to Ms. Crocker, when she returned to work,
she reminded Interstate that she needed to be on “light duty,” but her duties remained the same as
before her injury. (Docket No. 31 ¶ 12.) Due to difficulties with typing, Ms. Crocker claims that
she had trouble entering data regarding customer orders into Interstate’s computer system, and
she had to work on weekends to complete her work.6
It was not until the first or second week of February of 2013 that Ms. Crocker first told
someone at Interstate that she believed she needed assistance to perform her job, and she
requested that Interstate hire another representative or assign an existing CSR to help her with
her work.7 Interstate denied her request because, according to Interstate, other employees were
fully occupied with their own accounts and there was no budget to hire a new CSR. In midMarch of 2013, approximately six weeks before she was terminated, Ms. Crocker met with
Matthew Wolf, one of Interstate’s owners. In the meeting, Mr. Wolf explained to Ms. Crocker
that she had made mistakes on a quote that she had given to U.S. Tobacco. Ms. Crocker told
Mr. Wolf that she was “overworked,” and Mr. Wolf responded that she should “continue to do

6

The court notes that Interstate did provide its employees with a short term disability
program which allowed an employee to receive 60% of her pay while disabled. It does not
appear that Ms. Crocker ever enrolled in this program.
7

The record does not contain information sufficient to identify whom at Interstate Ms.
Crocker told that she needed assistance to perform her job.
7

the best [she] could and to concentrate on Customer Quotes and Customer Orders because they
had priority over everything else.” (Docket No. 28-1 ¶ 49.)
On April 22, 2013, Ms. Crocker claims that she told Ms. Coleman and Mr. Matt that she
would need time off for another surgery on her right wrist, which had not yet been scheduled. A
week later, on April 29, 2013, Teri Doochin – co-president of Interstate – called Ms. Crocker
into her office, along with Mr. Matt and Julie Gleason, Interstate’s Director of Human
Resources. Ms. Doochin explained to Ms. Crocker that there were pricing errors in purchase
orders on one of her accounts from the previous November and December (before Ms. Crocker’s
injury), which could have cost the company as much as $35,000. Ms. Crocker was allowed to
return to work after the meeting with Ms. Doochin, but she was soon called into another meeting
with Ms. Gleason and Mr. Matt. Together, the two advised Ms. Crocker that her employment
was terminated. No one was hired to replace Ms. Crocker; rather, her workload was divided
among and assumed by existing employees.
Ms. Crocker contends that she was terminated for failing to update one of Interstate’s
spreadsheets related to purchase orders and pricing. (Docket No. 27 (Dep. P. Crocker), 149:25–
150:3 (answer by Ms. Crocker that she believed her employment was terminated at Interstate
“[b]ecause [she] wasn’t keeping up with the [pricing] spreadsheet”.) When Ms. Crocker was
asked during her deposition if she could “think of any other reason” why she was terminated, she
answered: “No.” (Id. at 150:4–6.) Interstate, on the other hand, contends that Ms. Crocker was
terminated because she had allowed purchase orders with incorrect pricing information to be
entered as orders. (Docket No. 26, p. 13.) Ms. Crocker challenges Interstate’s proffered reason
by pointing to a fellow CSR, Carolyn Fielder, who – according to Ms. Crocker – made similar
mistakes with pricing information but was not terminated. According to Ms. Crocker,

8

Ms. Fielder was responsible for the U.S. Tobacco account before it was assigned to Ms. Crocker.
Ms. Fielder made three or four large pricing errors on the account and was suspended for several
days after the final error. Ms. Fielder was not, however, terminated for these errors but, rather,
was transferred to another department in Interstate.
PROCEDURAL HISTORY
On October 28, 2014, Ms. Crocker filed the Complaint against Interstate, alleging that
Interstate: (1) violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., when it
failed to pay Ms. Crocker overtime wages for weeks in which she worked more than 40 hours;
(2) violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., when it
failed to provide her with her requested accommodation for her injured arm; and (3) violated the
FMLA when it interfered with the leave she requested for her second surgery by terminating her
before she could take it. (Docket No. 1.) Ms. Crocker requests back and front pay;
compensatory, liquidated, and punitive damages; and attorney’s fees and expenses. (Id. at p. 8.)
After obtaining an extension of the deadline to respond the Complaint (Docket No. 10), Interstate
filed an Answer on March 19, 2015 (Docket No. 13).
On September 18, 2015, Ms. Crocker sought an extension of the discovery deadline from
September 20, 2015 to October 23, 2015 so that she could take the deposition of Interstate
pursuant to Federal Rule of Civil Procedure 30(b)(6). (Docket No. 17.) Despite the short notice,
the court granted the extension and also extended the deadlines for dispositive motions, but it
noted in the Order that “plaintiff’s counsel should not rely upon the court’s leniency” in the
future. (Docket No. 22.)
Interstate timely filed its Motion for Summary Judgment on November 9, 2015 (Docket
No. 23), accompanied by a supporting Memorandum (Docket No. 26), a Statement of

9

Undisputed Material Facts (“SUMF”) (Docket No. 24), the Declaration of Teri Doochin (Docket
No. 25), and various exhibits, including the deposition of Ms. Crocker (Docket No. 27). On
December 5, 2015, one day after the filing deadline, Ms. Crocker filed her Response (Docket No.
28), accompanied by a Response to Interstate’s SUMF and Ms. Crocker’s Additional Statements
of Material Facts (Docket No. 28-1), the Declaration of Ms. Crocker (Docket No. 28-2), and
other exhibits. Ms. Crocker also filed a Motion to Accept the Late Filing of her Response
(Docket No. 29), which the court granted (Docket No. 33). On December 14, 2015, Interstate
filed a timely Reply in support of its Motion and the Second Declaration of Ms. Doochin.
(Docket Nos. 31, 32.) On December 22, 2015, Ms. Crocker filed a Motion for Permission to File
a Sur-Reply (Docket No. 34) and, on December 28, 2015, Interstate filed an Opposition to the
Motion, requesting that the court either deny Ms. Crocker’s request or grant it permission to file
a response to the proposed Sur-Reply (Docket No. 35).
MOTION FOR PERMISSION TO FILE SUR-REPLY
In her Motion for Permission to File a Sur-Reply, Ms. Crocker argues that she should be
allowed to address Interstate’s arguments regarding “supposed defects” in her Response to
Interstate’s SUMF, new issues raised in the Reply, and Interstate’s “misstate[ments]” of her
position. (Docket No. 34.) The only new issue from Interstate’s Reply that Ms. Crocker’s SurReply addresses is Interstate’s argument that it is entitled to summary judgment on her FMLA
claim because she admitted in her deposition that the only reason she believed she had been
terminated was because she could not “keep[] up with the [pricing] spreadsheet.” The court will
grant Ms. Crocker’s Motion for Permission to File a Sur-Reply for the limited purpose of
considering her response to this argument. See Seay v. Tenn. Valley Auth., 339 F.3d 454, 481
(6th Cir. 2003) (noting that sur-replies are appropriate “[w]hen new submissions and/or

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arguments are included in a reply brief, and a nonmovant’s ability to respond to the new
evidence has been vitiated”).
The court will not, however, consider the portions of the Sur-Reply that merely rehash
Ms. Crocker’s arguments from her Response that (1) she did request a reasonable
accommodation for the limitations imposed on her by her injury, and (2) Interstate interfered
with her requested leave for her second surgery by terminating her. (Docket No. 34-1.) With
respect to the “supposed defects” in Ms. Crocker’s Response to Interstate’s SUMF (Docket No.
28-1 ¶¶ 14, 22–24, 26, 66, 68), the court has examined the factual basis cited by Interstate in the
SUMF and, in many of the cases, determined that the dispute between the parties was a dispute
regarding characterization of the testimony, which the court must construe in favor of Ms.
Crocker. Ms. Crocker’s additional arguments regarding those facts are not, therefore,
appropriate or necessary, and the court will not consider them.8 The court also concludes that no
additional response from Interstate would be helpful to or necessary for disposition of the
pending Motion for Summary Judgment, and the court, therefore, denies Interstate’s request to
file a response to the Sur-Reply.
MOTION FOR SUMMARY JUDGMENT
I.

Legal Standard
Federal Rule of Civil Procedure 56 requires the court to grant a motion for summary

judgment 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). If a moving defendant
shows that there is no genuine issue of material fact as to at least one essential element of the
8

The court notes that Ms. Crocker doesn’t provide any explanation in the Sur-Reply for
the one argument regarding her Response to Interstate’s SUMF that warrants a response: her
failure to respond to paragraph 67.
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plaintiff’s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings,
“set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City
of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). Conversely, a moving party bearing the burden of proof on a claim must show
that the non-moving party cannot raise a genuine issue of fact regarding any element of the
relevant claims. In both instances, “[i]n evaluating the evidence, the court must draw all
inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
At this stage, “‘the judge’s function is not . . . to weigh the evidence and determine the
truth of the matter, but to determine whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a
scintilla of evidence in support of the [non-moving party’s] position will be insufficient,” and the
party’s proof must be more than “merely colorable.” Anderson, 477 U.S. at 252. An issue of
fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan,
578 F.3d at 374 (citing Anderson, 477 U.S. at 252).
II.

Analysis
A.

Overtime Wages Under the Fair Labor Standards Act

Ms. Crocker alleges that, during her employment with Interstate, the company failed to
pay her overtime wages as required by the FLSA. The FLSA establishes a minimum wage for
employers to pay each of their employees and requires employers to compensate such employees
one and one-half times their regular hourly pay for every hour they work in excess of forty hours
per week. 29 U.S.C. §§ 206(a)(1), 207(a)(1). The FLSA includes, however, several categories
of employees for whom employers are exempt from these requirements, including executive,

12

administrative, professional, and outside sales positions. 29 U.S.C. § 213(a)(1). The definitions
of these positions are to be narrowly construed against the employer who asserts the exemption.
Baden–Winterwood v. Life Time Fitness, Inc., 566 F.3d 618, 626 (6th Cir. 2009). Indeed, FLSA
overtime exemptions are “affirmative defense[s] on which the employer has the burden of
proof.” Thomas v. Speedway SuperAmerica, LLC, 506 F.3d 496, 501 (6th Cir. 2007) (quoting
Corning Glass Works v. Brenna, 417 U.S. 177, 196–97 (1974)); accord Elwell v. Univ. Hosps.
Home Care Servs., 276 F.3d 832, 837 (6th Cir. 2002).
Interstate does not deny that it failed to pay Ms. Crocker overtime wages but, instead,
asserts that Ms. Crocker was exempt from the FLSA’s overtime pay requirements because she
was employed in an administrative capacity under 29 U.S.C. § 213(a)(1). (See Docket No. 26,
pp. 4–9.) FLSA regulations – promulgated by the Department of Labor – provide that an
“employee employed in a bona fide administrative capacity” is any employee:
1) Compensated on a salary or fee basis at a rate of not less than $455 per
week . . . exclusive of board, lodging or other facilities;
2) Whose primary duty is the performance of office or non-manual work
directly related to the management or general business operations of the
employer or the employer’s customers; and
3) Whose primary duty includes the exercise of discretion and independent
judgment with respect to matters of significance.
29 C.F.R. § 541.200(a). The regulations further provide that “the exercise of discretion and
independent judgment involves the comparison and the evaluation of possible courses of
conduct, and acting or making a decision after the various possibilities have been considered.”
Id. § 541.202(a).
Interstate contends that the undisputed facts demonstrate that it properly classified
Ms. Crocker as an administrative employee exempt from the FLSA’s overtime requirements.
(Docket No. 26, pp. 4–9.) Because the employer bears the burden of proving that its employee’s
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position was exempt, Interstate must demonstrate that Ms. Crocker cannot raise a genuine issue
of fact regarding any element of the exemption. Ms. Crocker does not dispute that she was
compensated at a rate of more than $455 per week, nor does she dispute that she performed
“office or non-manual work” related to Interstate’s customers. (See Docket No. 28-1 ¶ 4.) As
described below, however, the court finds that a genuine dispute of material fact exists as to
whether Ms. Crocker’s primary duty included the exercise of discretion and independent
judgment with respect to matters of significance.
While it is undisputed that Ms. Crocker’s primary duty was to prepare customer purchase
orders and quotes and enter data relating to those orders and quotes into Interstate’s computer
system, (Docket No. 31 ¶ 6), the record is unclear as to whether Ms. Crocker exercised discretion
and independent judgment while performing that duty. Interstate argues that Ms. Crocker did
exercise discretion and independent judgment as she “guide[d] the customer through the price
quoting, production, and shipping processes.” (Docket No. 26, p. 8.) According to Interstate,
Ms. Crocker did not have a “simple data entry job” but, rather, was in charge of setting and
leading meetings with Interstate department managers and reviewing lengthy customer contracts
to obtain “necessary information.” (Id. at pp. 8–9.) Furthermore, Interstate contends, Ms.
Crocker was responsible for keeping Interstate’s customers happy and maintaining long-term
relationships, which required her to respond to varying requests and changing circumstances.
(Docket No. 32, pp. 5–7.) According to Interstate, Ms. Crocker was not a “mere conduit of
information between the customer and management,” because, if she was, it would make no
sense for Interstate to pay her for a job that could be accomplished by “answering machines and
email.” (Id. at p. 6.)
Ms. Crocker, on the other hand, argues that her work on customer purchase orders and

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quotes – which included gathering and entering data, communicating with the client, and
attending pre-quote and production meetings – was “entirely clerical” and did not involve the
exercise of any discretion or independent judgment. (Docket No. 28, pp. 8–9.) Ms. Crocker
notes that entering customer orders into Interstate’s system “occupied about 65–75% of [her]
time” – a fact that Interstate has not disputed – and that she did not play any role in actual price
determination or negotiation, because purchase order prices were set by the customer’s contract
price or by the Estimating department. (See Docket No. 28, p. 8; Docket No. 31 ¶ 6.). She takes
issue with Interstate’s characterization of the meetings she “led,” noting that she only set a time
for the meeting and that any discretion or judgment that was exercised during those meetings
was actually exercised by the department managers. (Docket No. 28, p. 9.) Finally, Ms. Crocker
argues that following a customer’s order through the production process and interacting with the
customer along the way did not require her to consider various possibilities and make decisions
for Interstate, because she merely communicated information between the customer and various
department heads, who were the ultimate decision-makers. (Id.) Interstate and Ms. Crocker
further disagree over whether Ms. Crocker was ultimately responsible for making sure that
quotes sent to, and prices on purchase orders received from, the customer were correct (Docket
No. 28-1 ¶¶ 9, 24) and what action she was expected to take if the customer entered an incorrect
price on a purchase order (id. ¶ 22).
Interstate has failed to meet its affirmative burden of demonstrating that Ms. Crocker is
exempt from the FLSA’s overtime wage requirements. Interstate has produced no job
description, training materials, or any other company documents that conclusively demonstrate
that Ms. Crocker’s position required the use of discretion and independent judgment, and the
parties’ arguments are premised almost entirely on Ms. Crocker’s own deposition testimony,

15

which lacks key details that could help to resolve this dispute. For example, the record contains
no information regarding Ms. Crocker’s ability to commit Interstate in matters that have
significant financial consequences, negotiate on its behalf on significant matters, or deviate from
established policies and procedures. See 29 C.F.R. § 541.202(b) (listing these factors, among
others, as information to be considered when determining whether an employee exercises
discretion and independent judgment). Ultimately, the parties’ evidence boils down to differing
characterizations of Ms. Crocker’s duties, and “it must be left to a trier of fact to weigh the
credibility of the parties’ contradictory characterization[s] of [the plaintiff’s] day-to-day duties.”
Henry v. Quicken Loans, Inc., 698 F.3d 897, 901 (6th Cir. 2012) (internal quotation marks
omitted).
The court concludes that a genuine dispute of material fact exists regarding the degree to
which Ms. Crocker exercised independent judgment and discretion as a CSR, if at all. Interstate,
therefore, has not met its burden of demonstrating that all elements of the exemption apply, and,
accordingly, the court will not grant summary judgment to Interstate on Ms. Crocker’s claim for
overtime wages under the FLSA.
B.

Reasonable Accommodation Under the Americans with Disabilities Act

Ms. Crocker contends that Interstate violated the ADA when it failed to grant her a
reasonable accommodation – a reduction in her data entry duties – for her injured arm.9 The
ADA prohibits an employer from “discriminat[ing] against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). Discrimination under the ADA includes an employer’s failure
to make “reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual who is an applicant or an employee, unless such covered entity
9

Ms. Crocker has conceded that she is not pursuing a claim under the ADA related to her
termination. (Docket No. 28, p. 13.)
16

can demonstrate that the accommodation would impose an undue hardship on the operation of
the business of the covered entity.” Id. § 12112(b)(5)(A); see also Kleiber v. Honda of Am. Mfg.,
Inc., 485 F.3d 862, 868 (6th Cir. 2007). To advance a failure to accommodate claim under the
ADA, an employee must show that she requested a reasonable accommodation and that the
employer failed to provide the necessary accommodation. Myers v. Cuyahoga Cnty, 182 F.
App’x 510, 515 (6th Cir. 2006). It is important to note that an employee’s request to be relieved
from an essential function of her position, or to have that essential function shifted to other
employees, is not, as a matter of law, a reasonable accommodation. See Bratten v. SSI Servs.,
Inc., 185 F.3d 625, 632 (6th Cir. 1999); see also Williams v. Prospect, Inc., No. 3:13-cv-0829,
2015 WL 1543500, at *4 (M.D. Tenn. Apr. 7, 2015) (collecting cases from other circuits
illustrating this point). Nor is it reasonable to request that an employer create a new position or
hire new employees to accommodate a disabled worker. See Bratten, 185 F.3d at 632; Brown v.
Chase Brass & Copper Co., Inc., 14 F. App’x 482, 488 (6th Cir. 2001).
Ms. Crocker contends that Interstate failed to reasonably accommodate her disability by
refusing to “reduce the amount of typing and data entry that she was asked to do” and to
reallocate her data entry work among the CSRs or hire a new CSR to assist her. (Docket No. 28,
pp. 11–13.)10 The parties dispute whether Ms. Crocker ever explicitly made this request but,
regardless of whether she did or not, Ms. Crocker’s request for an accommodation consisting of
a reduction in the amount of data entry she was required to do was not – as a matter of law – a
request for a reasonable accommodation. While it is true that the ADA requires “job
10

Ms. Crocker repeatedly alleges in the Complaint and in her affidavit that Interstate did
not decrease her workload after she requested “light duty.” (Docket No. 1 ¶¶ 44, 49, 60; Docket
No. 28-2 (Aff. P. Crocker) ¶¶ 10, 12.) In her Response, however, Ms. Crocker clarifies that she
did not request “an overall decreased workload, but rather . . . a decrease in the amount of data
entry being required of [her].” (Docket No. 28, p. 12.)
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restructuring” as a “reasonable accommodation” in appropriate circumstances, 42 U.S.C.
§ 1211(9)(B), that restructuring pertains only to “non-essential duties or marginal functions of a
job,” Bratten, 185 F.3d at 632. Put simply, reasonable job restructuring may only involve the
shifting of non-essential duties to other employees. Id.; see also Dvorak v. Mostardi Platt
Assocs., Inc., 289 F.3d 479, 484 (7th Cir. 2002) (“Under the ADA, an employer is not required to
modify, reduce, or reallocate the essential functions of a job to accommodate an employee.”).
Although the employer bears the burden of proving that a challenged job criterion is
essential, Ms. Crocker concedes that data entry is essential to her job duties. One indication of
whether or not a job duty is an essential function is “the amount of time spent on the job
performing the function.” 29 C.F.R. § 1630.2(n)(3). Ms. Crocker admits that one of her primary
duties was “entering customer purchase orders and quotes, which occupied about 65–75% of
[her] time.” (Docket No. 31 ¶ 6 (emphasis added).) Furthermore, when Ms. Crocker argues in
her Response that she is not exempt from the overtime requirements of the FLSA, she states that
her duties as a CSR “consisted primarily of entering data for customer orders, bids, quotes, and
returns into the computer system.” (Docket No. 28, p. 7 (emphasis added).) Because data entry
was fundamental to Ms. Crocker’s job, Interstate was not required to reallocate data entry duties
among its CSRs to reduce the amount of data entry that Ms. Crocker had to do. See Bratten, 185
F.3d at 632. Nor was Interstate required to assign another CSR to assist Ms. Crocker with data
entry or hire a new employee to do so. Id.
Accordingly, because the accommodation proposed by Ms. Crocker was unreasonable as
a matter of law, the court will grant summary judgment to Interstate on Ms. Crocker’s claim of

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failure to provide reasonable accommodation under the ADA.11
C.

Interference with Rights Under the Family Medical Leave Act

Ms. Crocker asserts that Interstate interfered with her rights under the FMLA when it
terminated her after she informed the company that she would need to take leave for a surgery.12
Under the FMLA, employees are entitled to take twelve weeks of leave for, among other things,
“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 FMLA makes it illegal for an
employer to “interfere with, restrain, or deny the exercise of or the attempt to exercise, any right
provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). To succeed on an interference claim, a
plaintiff must show that: “(1) [she] was an ‘[e]ligible employee;’ (2) the defendant was an
‘[e]mployer’ covered under the FMLA; (3) the employee was entitled to leave under the FMLA;
(4) the employee gave the employer notice of [her] intention to take leave; and (5) the employer
denied the employee FMLA benefits to which [she] was entitled.” Wysong v. Dow Chem. Co.,
503 F.3d 441, 447 (6th Cir. 2007) (internal citations omitted) (quoting Cavin v. Honda of Am.
Mfg., Inc., 346 F.3d 713, 719 (6th Cir. 2003)).

11

Interstate also argues that, with her alleged disability, Ms. Crocker was not qualified
for her position as a CSR, with or without a reasonable accommodation. (Docket No. 26, p. 11.)
Because the court concludes that Ms. Crocker’s requested accommodation was not reasonable as
a matter of law, the court does not reach the merits of this argument.
12

The court notes that, even though she has never pursued this theory, Ms. Crocker’s
allegation that Interstate terminated her following her request for FMLA leave could also be
construed as a claim that Interstate retaliated against her for exercising her rights under the
FMLA. Wallner v. Hilliard, 590 F. App’x 546, 551 (6th Cir. 2014) (“[F]iring someone who has
just requested FMLA leave before he can take it could be construed both as retaliation for having
asked for leave and as interference with the employee’s ability to take it.”). Even if the court
were to construe Ms. Crocker’s claim as one for retaliation, however, the claim would fail for the
same reasons as those discussed herein.
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The Sixth Circuit has recognized that “the FMLA is not a strict-liability statute,” and “the
mere occurrence of interference with an employee’s FMLA rights is not a per se FMLA
violation.” Ritenour v. Tenn. Dep't of Human Servs., 497 F. App’x 521, 530 (6th Cir. 2012)
(internal citations omitted). Rather, “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) (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006)). If the defendant
offers a legitimate reason for the challenged conduct, the plaintiff must then demonstrate that the
proffered reason is pretextual by showing that it had (1) no basis in fact, (2) did not motivate the
adverse employment action, or (3) was insufficient to warrant the adverse employment action.
Id. (citing Wexler v. White’s Fine Furniture, 317 F.3d 564, 567 (6th Cir. 2003)).
No one could seriously dispute that Ms. Crocker’s termination prevented her from taking
the previously requested leave for a second surgery on her arm; it would be impossible for her to
take leave from a job that she no longer had. The mere fact that her termination interfered with
her requested FMLA leave does not, however, necessarily prove that Interstate violated the
FMLA. Ms. Crocker must also demonstrate that her termination was related to her request for
leave under the FMLA and that any other allegedly legitimate reason for her termination was
pretextual. Ms. Crocker cannot, however, make such a showing as a matter of law, because she
has conceded through her own testimony that Interstate’s reason for terminating her was
unrelated to her exercise of FMLA rights. When asked during her deposition why she “th[ought]
her employment was terminated at Interstate,” Ms. Crocker replied: “Because I wasn’t keeping
up with the [pricing] spreadsheet.” (Docket No. 27 (Dep. P. Crocker), 149:25–150:3.)
Ms. Crocker was then asked if she could “think of any other reason” why she was terminated,

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and she answered: “No.” (Id. at 150:4–6.)
Ms. Crocker argues in her Sur-Reply that this testimony is irrelevant, but such an
argument is without merit. (Docket No. 34-1, p. 7.) First, this concession is excerpted directly
from Ms. Crocker’s deposition, taken on August 19, 2015, over a year after she was terminated
and almost a year after she filed the Complaint, (see Docket No. 27), and it is not, as Ms.
Crocker argues, a mere statement of her “initial[] belie[f]” as to why she was terminated.
(Docket No. 34-1, p. 7.) Second, Ms. Crocker’s belief as to the reason for her termination is very
relevant. If she believes that she was terminated because of certain aspects of her job
performance and for no other reason, then she cannot truthfully and in good faith advance a
claim premised on arguments that her termination was related to her request for leave under the
FMLA and that any other reason for her termination is pretextual.
Accordingly, the court concludes that there is no genuine dispute of fact as to whether
Interstate interfered with Ms. Crocker’s rights under the FMLA, and the court will grant
summary judgment to Interstate on Ms. Crocker’s claim under the FMLA.
CONCLUSION
For the reasons discussed herein, the plaintiff’s Motion for Permission to File a SurReply will be granted, and Interstate’s Motion for Summary Judgment will be granted in part and
denied in part. Specifically, summary judgment as to Ms. Crocker’s claims for failure to provide
reasonable accommodation under the ADA and interference with rights under the FMLA will be
granted to Interstate. The motion as to Ms. Crocker’s claim for overtime wages under the FLSA
will be denied.

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An appropriate order will enter.

___________________________
ALETA A. TRAUGER
United States District Judge

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