Bullard v. Fedex Freight, Inc.

Filing 53

MEMORANDUM signed by District Judge Waverly D. Crenshaw, Jr on 11/9/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
L. KRISTEN BULLARD,
Plaintiff,
v.
FEDEX FREIGHT, INC.,
Defendant.

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NO. 3:15-cv-00905
JUDGE CRENSHAW

MEMORANDUM OPINION
L. Kristen Bullard brings this action against her former employer, FedEx Freight, Inc.
(hereinafter “FedEx”), after it terminated her employment for excessive absences and tardiness.
(Doc. No. 10.) She alleges that FedEx violated the Family Leave and Medical Act (“FMLA”), 29
U.S.C. § 2601, et seq., Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and
Tennessee state law when it terminated her employment. (Id.) Before the Court is FedEx’s Motion
for Summary Judgment. (Doc. No. 34.) In response to FedEx’s motion, Bullard voluntarily
dismissed her state law claims. (Doc. No. 47 at 2 n.1.) For the following reasons, FedEx’s motion
is GRANTED IN PART and DENIED IN PART.
I.

UNDISPUTED FACTS
In 2004, FedEx hired Bullard as a supplemental field office employee. (Doc. No. 46 at 1.)

As part of a company-wide realignment, FedEx rehired Bullard on January 1, 2011, as an
Administrative Assistant-Senior Manager. (Id.) When FedEx hired Bullard, she signed an offer
letter and an accompanying “Conditions of Employment” document, stating: “To the extent the
law allows an employee to bring legal action against the Company, I agree to bring the complaint
within the time prescribed by law or 6 months from the date of the event forming the basis of my

lawsuit, whichever expires first.” (Id. at 1-2.) It gave FedEx “the absolute unfettered right to
change its policies, rules, regulations, and procedures unilaterally, at any time, without prior
notice.” (Id. at 2.)
A. Background
In 2007, FedEx first approved Bullard’s request for intermittent FMLA leave. (Id. at 4.)
Bullard has lupus dermatomyositis, which can cause her to have a rash, muscle stiffness, weakness,
and pain on any given day. (Doc. No. 51 at 1.) When her symptoms flare up, she has more pain,
moves slower, and sometimes cannot walk. (Id.) It may take her two hours to do something that
would otherwise take twenty minutes. (Id.) For much of Bullard’s employment, her start time was
7:00 a.m., but she claims FedEx gave her a fifteen-to-thirty minute window to clock-in as an
informal accommodation for her disability. (Doc. No. 51 at 2.) In late-2013/early-2014, FedEx
changed Bullard’s start time to 7:30 a.m., which Bullard understood was to accommodate her
disability. (Id.)
FedEx has a written attendance policy, as well as an unwritten customary call-in procedure.
(Doc. No. 46 at 5; Doc. No. 51 at 6-7.) The Attendance Policy states that an employee is late if she
is more than three minutes late to her scheduled shift. (Doc. No. 46 at 5.) It requires an employee
who will be late to notify her supervisor within thirty minutes of her scheduled start time. (Doc.
No. 51 at 6-7.) FedEx’s call-in procedure requires an employee to provide notice of a tardy or
absence two hours before her scheduled start time, via telephone. (Doc. No. 46 at 5.) FedEx
counseled Bullard on the call-in procedure. (Id.)
Under the Attendance policy, every time the employee is absent, FedEx assigns her one
attendance point. (Doc. No. 41-1 at 2-3.) For every tardy, the employee is assigned 0.5 attendance
points. (Id.) After five attendance points within a rolling 180-day calendar-day period, the

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employee is placed on ninety days of probation. (Id. at 4.) Any points assigned to an employee
during her probationary period would lead to that employee’s discharge. (Id.) Approved absences
due to FMLA do not count toward FedEx’s disciplinary process as long as the employee submits
proper documentation and gives notice “within a reasonable time prior to” the employee’s start
time, “or as soon as practical.” (Doc. No. 46 at 6-7.) “Practicability should be based upon
circumstances related to the FMLA need.” (Id. at 7.)
From 2004 until 2007, FedEx issued nine Corrective Action Forms to Bullard because of
her unexcused tardies and/or absences. (Id.) Between February 2007 and October 2013, District
Manager Frank Center was “overly lenient” in handling Bullard’s FMLA requests, and Bullard
did not receive any corrective actions. (Id.) For example, Center had allowed Bullard to use FMLA
to cover tardy incidents related to her lack of child care, which was not covered under the FMLA.
(Doc. No. 51 at 11.) After Center passed away, Tommy Jackson, the Fleet District Manager, began
tracking Bullard’s time, and issued her nine corrective actions, eventually leading to her
termination in December 2014. (Doc. No. 46 at 8.) When Jackson took over, he and Charles Elkins,
the Senior Manager of Regional Fleet Maintenance, discussed Bullard’s attendance issues with
Human Resources. (Id.) They then discussed FedEx’s policies on attendance and the FMLA with
Bullard, and informed her that they would adhere to those policies moving forward. (Id.)
On March 27, 2014, Elkins discovered that Bullard did not have a start time in the system
for the day. (Id. at 8.) Bullard told Elkins that she scanned in, but she was unsure if the machine
was working. (Id. at 9.) Bullard turned in a Kronos Edit Form, estimating that she started her shift
at 7:32 a.m. (Id.) However, FedEx’s video camera showed that Bullard did not enter the building
until 7:38 a.m. (Id.) As a result of the misinformation on Bullard’s Kronos Edit Form, FedEx
terminated Bullard’s employment for falsifying her Kronos Edit Form. (Id.) Bullard appealed her

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termination, asserting that Jackson had only asked her to estimate her clock-in time when filling
out a Kronos Edit Form on a prior occasion. (Id.) FedEx reinstated Bullard’s employment. (Id. at
10.)
B. The Alleged-FMLA Violations
During the next few months, Bullard received multiple Corrective Actions for attendance
reasons. (Id. at 10.) On July 17, 2014, Bullard was late because she was in a substantial amount of
pain. (Doc. No. 51 at 13.) She requested that FMLA time cover this absence in an email dated
October 1, 2014. (Doc. No. 37-2 at 13.)
On August 6, 2014, Bullard received a Corrective Action for allegedly clocking in late, and
warned Bullard that any future “attendance points,” accumulated for tardiness or absences, would
result in FedEx placing Bullard on probation. 1 (Doc. No. 46 at 11.) That day, Elkins and Christina
Wilson, the Employee Relations Advisor for the Nashville District of FedEx, met with Bullard and
informed her that her FMLA certification no longer covered episodic incapacities, such as
tardiness. (Doc. No. 46 at 11.) Bullard had used the same certification for years and it had always
covered episodic incapacities. (Id.) They provided Bullard new paperwork, which Bullard
completed. (Doc. No. 51 at 14.) On August 11, 2014, FedEx approved Bullard’s FMLA
certification for episodic incapacity for flare ups estimated at three times per month. (Id.) However,
Elkins and Wilson told Bullard that she would still have to give proper notice under the call-in
procedure. (Doc. No. 46 at 12.) Bullard stated that she could not comply with the two hour notice
procedure, so FedEx agreed to amend the call-in procedure to one hour prior to the start time. (Id.)

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Bullard disputes that she clocked in late that day because she claims FedEx does not provide any proof of
the time she clocked in. (Doc. No. 46 at 11.) Elkins’ signed declaration and the written corrective action both are proof
of the time Bullard clocked in. (Doc. No. 42 at 3; Doc. No. 37-1 at 36.) Bullard provides no proof that this is incorrect,
so the Court finds that it is undisputed.
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On August 19, 2014, Bullard called Elkins from the side of the road at 6:56 a.m. stating
that she was going to be late because she was having a flare-up. (Id. at 14.) Bullard was in a lot of
pain in the morning, but hoped it would subside. (Id. at 15.) Because Bullard did not call one hour
in advance of her start time, FedEx assessed a tardy and placed her on leave without pay for
exceeding the allowable number of attendance points. (Id.)
C. The Investigation
On September 9, 2014, Bullard sent Wilson an email requesting a reasonable
accommodation of schedule flexibility. (Doc. No. 46 at 16.) Wilson noted that on numerous
occasions, her manager had offered to let her move her start time to later in the morning, which
Bullard declined because she needed to sync her work schedule with her child care needs. (Id.)
Bullard admitted that she did not want to modify her start time, but instead wanted FedEx to give
her flexibility in the time she had to clock-in when her symptoms flared up. (Id.)
On October 3, 2014, Jackson spoke with Bullard on the phone. (Doc. No. 40-14 at 1.) She
told Bullard that her previously-marked unexcused tardies from July 17 and August 19 would be
counted as FMLA time. (Id.) However, because Bullard did not follow the call-in procedure,
FedEx did not remove those attendance points, and Bullard was still on leave without pay. (Id.)
She stated that Bullard’s September 9 request for schedule flexibility was still pending, and after
a determination of that request, FedEx will decide whether to remove her attendance points from
July 17 and August 19 and reinstate her. (Id.)
On October 14, 2014, Pullen and Bullard spoke by phone and offered to reinstate her
employment. (Doc. No. 37-1 at 16.) Bullard declined because of stress. (Id. at 17.) It is disputed,
and neither party provides any evidence, as to whether FedEx asked Bullard to turn in medical

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certification regarding her stress, or whether the stress was related to Bullard’s previous
certification. (Id. at 17-18.)
On October 15, 2014, Bullard submitted a Reasonable Accommodation Review form to
FedEx’s Reasonable Accommodation Review Committee. (Id. at 18.) Bullard restated her
September 9 request that FedEx not hold her to the three minute clock-in rule on days when her
condition flares up, provided that she still works eight hours from the time she clocks in. (Id.)
Bullard testified that this was essentially the same “lenient” standard her previous manager, Center,
provided her. (Id.)
On December 3, 2014, the Reasonable Accommodation Review Committee decided that
FedEx could not grant Bullard’s reasonable accommodation request. (Id. at 19.) It did not state
why it could not grant Bullard’s reasonable accommodation request, but presumably it determined
that, under the Attendance Policy, attendance was an essential part of Bullard’s job function on
which FedEx could not be lenient. (Doc. No. 46 at 5.) FedEx terminated Bullard’s employment
effective the next day because of her accumulated attendance points. (Id.) Had the reasonable
accommodation request been granted, FedEx would have removed Bullard’s attendance points
from July 17 and August 19, and it would have reinstated Bullard’s employment. (Doc. No. 51 at
22.)
FedEx did not immediately replace Bullard because it had a hiring freeze, and Bullard’s
duties were absorbed by two other senior administrators. (Id.) In June or July 2016, FedEx offered
Bullard’s former job to another person. (Id. at 22-23.)
II.

STANDARD OF REVIEW
In reviewing a motion for summary judgment, this Court will only consider the narrow

question of whether there are “genuine issues as to any material fact and [whether] the moving

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party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The Court is required to
view “the facts and reasonable inferences in the light most favorable to the nonmoving party . . .
.” Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016) (citing Cass v. City of Dayton, 770
F.3d 368, 373 (6th Cir. 2014)).
III.

ANALYSIS
The Amended Complaint raises five federal claims: (1) interference with her FMLA rights;

(2) retaliation for using FMLA leave; (3) discrimination under the ADA; (4) failure to
accommodate under the ADA; and (5) retaliation under the ADA. (Doc. No. 10.) FedEx moves
for summary judgment on all claims.
A. FMLA
FedEx argues that it is entitled to summary judgment on Bullard’s FMLA claims because
(1) Bullard brought the case after the six-month contractual limitations period expired, and (2)
Bullard cannot establish a prima facie case on either claim. (Doc. No. 35 at 11, 28.)
1. Contractual Limitations Period
FedEx argues that Bullard’s FMLA claims violate the contractual statute of limitations that
Bullard bring any legal action within six months of the date of the event forming her lawsuit. (Doc.
No. 35 at 11.) Bullard contends that the contractual limitations period interferes with her right to
sue under the FMLA, which violates the statute. (Doc. No. 47 at 12.)
Both sides agree that this is a matter of first impression within this District. FedEx cites
two district courts and the State of Tennessee that agree with its position. 2 Badgett v. Federal
Express Corp., 378 F. Supp. 2d 613, 625 (M.D.N.C. 2005); Fink v. Guardsmark, LLC, No. CV
03-1480-BR, 2004 WL 1857114, at *3-4 (D. Ore. Aug. 19, 2004). These cases reason that the

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The State of Tennessee applies the contractual limitations period on its comparable Tennessee Human
Rights Act. Hill v. Home Ins. Co., 125 S.W.2d 189, 192 (Tenn. Ct. App. 1938).
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statute of limitations is not a “right” given to employees, but instead a procedural protection to the
employers, so there is no prohibition in the FMLA to the contractual limitations clause. Id. On the
other side, Bullard cites four district courts that agree with its position. E.g., Plitsas v. Federal
Exp., Inc., No. 07-5437, 2010 WL 1644056, at *6 (D.N.J. Apr. 22, 2010); Grosso v. Federal Exp.
Corp., 467 F. Supp. 2d 449, 457 (E.D. Penn. 2006); Conway v. Stryker Medical Div., No. 4:05cv-40, 2006 WL 1008670, at *1 (W.D. Mich. Apr. 18, 2006); Lewis v. Harper Hosp., 241 F. Supp.
2d 769, 772 (E.D. Mich. 2002). These cases conclude, as the Court does, that the FMLA gives
employees a right to sue, and the contractual limitations period unlawfully interferes with that
right. Id.
As with any matter of first impression, the Court starts with the words in the statute. The
FMLA prohibits employers to “interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1) (2006). Under the
subchapter, Congress has given the employee has a right to sue his or her employer in federal court
for violating § 2615. 29 U.S.C. § 2617(a)(2) (2008). The right to sue “may be brought . . . no later
than 2 years after the date of the last event constituting the alleged violation for which the action
is brought.” Id. at (c)(1). Congress then declared: “Employees cannot waive, nor may employers
induce employees to waive, their rights under the FMLA.” 29 C.F.R. § 936.220(d).
Based on the plain language of the statute, an employer cannot interfere with an employee’s
right to sue. The relevant right is the right to sue under the FMLA for a period of two years. FedEx
advances that the FMLA limitations period “exist[s] for the protection of defendants.” (Doc. No.
35 at 11 (citing Garden City Osteopathic Hosp. v. Hbe Corp., 55 F.3d 1126, 1135 (6th Cir. 1995))).
FedEx then reasons that it is not a right afforded to employees, but instead is a protection afforded
to employers. FedEx is attempting to expand the FMLA limitations protection afforded to itself,

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thereby limiting the right afforded to its employees under § 2617. This is impermissible under §
2615. Therefore, the Court finds that the contractual limitations period does not apply, but instead
the statutory limitations period.
This decision joins the other district courts within the Sixth Circuit that have considered
this issue. E.g., Conway, 2006 WL 108670, at *1-2; Harper Hosp., 241 F. Supp. 2d at 772-73.
FedEx, along with the cases it cites, makes the mistake in defining the right as the defendant’s
right to be sued within a reasonable period. (Doc. No. 35 at 11 (and cited cases)). Tellingly, every
time FedEx discusses the right at issue, it discusses the limitations period. (See id. at 11-12 (“By
its express terms, this provision only protects employees’ ‘rights’ under the statute.”)
(“[L]imitations periods are procedural in nature.”)). However, the relevant right is the plaintiff’s
right to sue, not the defendant’s right to be sued within a reasonable period. See 29 U.S.C. § 2915
(prohibiting employers from interfering with employees’ rights, including the right to sue). An
employer cannot limit the plaintiff’s right to sue more than the statute does, and the Court denies
summary judgment on that basis.
2. FMLA Interference
FedEx argues that it is entitled to summary judgment on Bullard’s FMLA interference
claim because (1) Bullard was not an eligible employee under the FMLA, and (2) FedEx did not
deny Bullard FMLA benefits to which she was entitled. (Doc. No. 35 at 27-28.)
To establish a prima facie case of FMLA interference, an employee must show that “(1)
[s]he was an eligible employee; (2) the defendant was a covered employer under the FMLA; (3)
[s]he was entitled to take leave under the FMLA; (4) [s]he notified [her] employer of [her] intent
to take leave; and (5) the employer denied [her] benefits or rights to which [s]he was entitled under

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the FMLA.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 427 (6th Cir. 2014)
(citing Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir. 2006)).
The FMLA statute defines the term “eligible employee” as an employee “who has been
employed—(i) for at least 12 months by the employer with respect to whom leave is requested
under section 2612 of this title; and (ii) for at least 1,250 hours of service with such employer
during the previous 12-month period.” 29 U.S.C. § 2611(2)(A) (2009). FedEx does not argue that
Bullard is not eligible under the FMLA statute, but instead argues that she is not eligible because
she seeks a permanent periodic intermittent leave not covered under the FMLA based on an
unreported Iowa Court of Appeals case. (Doc. No. 35 at 27 (quoting Hayes v. Vermeer Mfg. Co.,
817 N.W.2d 495, at *8 (Iowa Ct. App. 2012) (“Decisions Without Published Opinions”)). The
Court is not persuaded to follow the Iowa case over the federal statute. Further, the Iowa court in
fact found the plaintiff eligible under the FMLA, but found the plaintiff’s FMLA certification
“facially invalid.” 3 Id. at *6-8. Here, FedEx does not argue that Bullard is not eligible under the
definition in the FMLA statute, so the Court denies FedEx summary judgment on this ground.
FedEx next argues that it did not deny Bullard any FMLA rights to which she was entitled.
Bullard argues that she was disciplined for the timeliness of her notification that she would be late
even though she informed FedEx “as soon as practicable,” in accordance with FedEx’s FMLA
procedures, which show that this is an issue of disputed material fact best left for a jury. (Doc. No.
47 at 16-17.) Importantly, FedEx granted Bullard’s FMLA request for both the July 17 and August
19 FMLA requests, which proves that these absences were eligible for FMLA time. It is true that

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The Iowa court found that the plaintiff’s certification was facially invalid because it allowed him to “take
unscheduled leave at a moment’s notice for the rest of [his] life.” Id. at *8. It held that, under the specific
circumstances, the plaintiff could not perform his essential job function of reliable attendance. Id. at *8-9. This is
different than Bullard’s request, as she was only asking for a periodic fifteen-to-thirty minute start time window,
which FedEx already gave her—albeit informally—for years.

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absent unusual circumstances, an employer may “condition FMLA-protected leave upon an
employee’s compliance with the employer’s usual notice and procedural requirements . . .
.” Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 614-15 (6th Cir. 2013) (citing 29 C.F.R.
§ 825.302(d)). FedEx does not provide any evidence as to whether Bullard called in on July 17,
and it is not disputed that Bullard was unable to call in earlier on August 19 because she had a flare
up in the car. Taking the evidence in the light most favorable to Bullard, she has established a
prima facie case of FMLA interference.
3. FMLA Retaliation
FedEx argues it is entitled to summary judgment on Bullard’s FMLA retaliation claim
because (1) Bullard is not an eligible employee, and (2) Bullard cannot prove that FedEx’s
legitimate, nonretaliatory reason for firing her was pretextual. The Court denies summary
judgment on FedEx’s first argument for the reasons set forth in the previous section. As that is the
only argument that Bullard could not prove a prima facie case, the Court finds that Bullard can
prove a prima facie case.
After an employee proves a prima facie case of FMLA retaliation, the burden shifts to the
employer to articulate a legitimate, nonretaliatory reason for its actions. Demyanovich, 747 F.3d
at 427, 433 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). The burden then
shifts back to the employee to prove that the employer’s legitimate, non-retaliatory reason is
pretextual. Id. at 433.
FedEx claims that it terminated Bullard’s employment because of her tardiness and failure
to utilize the correct call-in procedure. Bullard can prove that FedEx’s reasons are pretextual if
they “(1) have no basis in fact; (2) did not actually motivate the action; or (3) were insufficient to

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warrant the action.” Id. at 431 (quoting Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 285 (6th
Cir. 2012)).
Bullard attempts to show pretext by showing (1) inconsistency in the application of
Bullard’s FMLA from 2013 to 2014; (2) Bullard took multiple days of FMLA in 2014, and each
were followed by write-ups related to attendance; and (3) FedEx had no complaints about Bullard’s
job performance. (Doc. No. 47 at 19.) In its reply brief, FedEx only states that it was not pretext
because Bullard did not follow the call-in procedure. (Doc. No. 50 at 5.) For the reasons given by
Bullard, there are issues of material fact as to whether FedEx’s proffered reason actually motivated
its action. FedEx found that Bullard’s time qualified for FMLA time and yet strictly held her to
the call-in procedure despite the evidence that calling in an hour prior to her start time was not
practicable. The Court denies summary judgment on this claim.
B. ADA
Bullard asserts three claims under the ADA: (1) disability discrimination; (2) failure to
accommodate; and (3) retaliation for proposing a reasonable accommodation. (Doc. No. 47 at 20.)
1. Disability Discrimination
FedEx argues that it is entitled to summary judgment on Bullard’s disability discrimination
claim because (1) Bullard cannot established that she was otherwise qualified for her position and
(2) Bullard did not suffer an adverse employment action because of her disability. (Doc. No. 35 at
13-17.) Bullard claims she was otherwise qualified with the reasonable accommodation of a
flexible start time, and she was fired because FedEx did not approve her reasonable
accommodation request. (Doc. No. 47 at 20-23.)
“To establish a claim for disability discrimination under the indirect method, a plaintiff
must first establish a prima facie case of discrimination by showing that (1) he or she is disabled,

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(2) he or she is otherwise qualified for the position, with or without reasonable accommodation,
(3) he or she 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.” Ferrari, 826 F.3d at 894 (citing Monette
v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) (overruled on other grounds)). The
fifth element “may also be satisfied by showing that similarly situated non-protected employees
were treated more fairly.” Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007) (quoting Talley v.
Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995) (overruled on other grounds)).
There is ample evidence to support Bullard’s contention that she is otherwise qualified for
her position with a reasonable accommodation of flex start time. Primarily, FedEx never had any
complaints about Bullard’s job performance even when she had the “overly lenient” clock-in time
when Center was her manager, which is the equivalent of the reasonable accommodation she
requested. Because there is a dispute of a material fact as to whether Bullard was otherwise
qualified with a reasonable accommodation, the Court denies summary judgment on this claim.
FedEx next claims that Bullard must prove that she suffered an adverse employment action
“due to” her disability. (Doc. No. 35 at 15.) Bullard is using indirect evidence to prove the
disability discrimination claim, and FedEx does not show what element of Bullard’s prima facie
case she cannot prove. Bullard suffered an adverse employment action because FedEx terminated
her. FedEx at least should have known about Bullard’s impairment because Bullard presented the
FMLA paperwork and certification. Last, Bullard was replaced after FedEx lifted the hiring freeze.
Bullard can establish a prima facie case, and summary judgment on her disability discrimination
claim is denied.
2. Failure to Accommodate

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FedEx asserts that it is entitled to summary judgment on Bullard’s failure to accommodate
claim because (1) Bullard cannot establish that she was qualified for her position and (2) Bullard’s
accommodation request was not reasonable. (Doc. No. 35 at 19-22.) Bullard contends that her
accommodation request is reasonable. (Doc. No. 47 at 23-24.)
To prove a prima facie failure to accommodate claim, a plaintiff must prove: (1) she was
disabled; (2) she was reasonably qualified for the position, with or without a reasonable
accommodation; (3) the employer knew or had reason to know about her disability; (4) she
requested an accommodation; and (5) the employer failed to provide the necessary
accommodation. Deister v. Auto Club Ins. Ass’n, 647 Fed. Appx. 652, 657 (6th Cir. 2016)
(citing Johnson v. Cleveland City Sch. Dist., 443 Fed. Appx. 974, 982-83 (6th Cir. 2011)). As
stated in the disability discrimination claim, FedEx is not entitled to summary judgment on the
first three elements.
Here, there is a disputed issue of material fact as to whether Bullard requested a reasonable
accommodation. “Generally, an ADA plaintiff ‘bears the initial burden of proposing an
accommodation and showing that the accommodation is objectively reasonable.’” Kleiber v.
Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). Bullard met her burden by twice
submitting a reasonable accommodation request for flexible start time. FedEx claims it is not
reasonable because “[p]untuality and attendance were essential functions of Bullard’s job.” (Doc.
No. 35 at 21.) However, FedEx bears the burden of proving that certain job criterion are essential,
or “that a proposed accommodation will impose an undue hardship upon [it].” Kleiber, 485 F.3d
at 869 (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004)). There are
multiple disputed facts that preclude summary judgment on this issue. Bullard had a flexible start
time when her manager was “overly lenient” and there is no evidence it affected her job

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performance. When FedEx stopped allowing Bullard to clock-in late, it still did not receive any
complaints on Bullard’s job performance. FedEx offered to allow Bullard to start later, a
reasonable inference of which is that she could perform her tasks later in the morning. There is
also a dispute as to whether the two people who absorbed Bullard’s job duties were required to do
Bullard’s job duties in the same timeliness that FedEx asserts is essential for the company. (Doc.
No. 51 at 16-17.) Based on these facts, the Court finds that it is disputed whether Bullard’s
requested accommodation would impose an undue hardship upon it.
3. Retaliation
FedEx argues that it is entitled to summary judgment on Bullard’s ADA retaliation claim
because Bullard cannot prove that her reasonable accommodation request was the “but for” cause
of her termination. (Doc. No. 35 at 25-26.) Bullard does not respond to this argument, but rather
asserts vaguely that a reasonable fact finder could determine she was denied accommodation and
terminated in retaliation for her complaints about the way she was treated because of her disability.
(Doc. No. 47 at 25.)
To prove an ADA retaliation claim, the plaintiff must initially prove her prima facie case
that “(1) the plaintiff engaged in activity protected under the ADA; (2) the employer knew of that
activity; (3) the employer took an adverse action against the plaintiff; and (4) there was a causal
connection between the protected activity and the adverse action.” Rorrer v. City of Stow, 743
F.3d 1025, 1046 (6th Cir. 2014) (citing A.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 697 (6th
Cir. 2013)).
Here, Bullard does not even mention a causal connection between her protected activity
and the adverse action. Therefore, the Court grants FedEx summary judgment on this claim.

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IV.

CONCLUSION
For the foregoing reasons, FedEx’s motion for summary judgment (Doc. No. 34) is

GRANTED IN PART with respect to Bullard’s ADA retaliation claim, and DENIED IN PART
in all other respects.
The Court will issue an accompanying order.

____________________________________
WAVERLY D. CRENSHAW, JR.
UNITED STATES DISTRICT JUDGE

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