Williams v. AT&T Mobility Services, LLC

Filing 53

ORDER GRANTING PLAINTIFF'S MOTION 40 FOR PARTIAL SUMMARY JUDGMENT. Signed by Judge S. Thomas Anderson on 5/16/2016. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

KIRSTEN WILLIAMS

)
)
Plaintiff,
)
)
Docket No: 2:15-cv-02150-STA-dkv
v.
)
)
AT&T MOBILITY SERVICES, LLC
)
)
Defendant.
)
)
___________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY JUDGMENT

Plaintiff Kirsten Williams filed this action against her former employer, AT&T
Mobility Services, LLC (“AT&T”), alleging that AT&T violated her rights under the
Americans with Disabilities Act (as amended), 42 U.S.C. § 12101 et seq. (“ADA”). (ECF
No. 1.) Plaintiff has moved for partial summary judgment on the sole issue of whether, at the
time of the relevant events, she was disabled as defined by 42 U.S.C. § 12102(1).1 (ECF No.
40.) AT&T has filed a response to the motion (ECF No. 46), and Plaintiff has filed a reply to
the response.

(ECF No. 52.)

For the reasons set forth below, Plaintiff’s motion is

GRANTED.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment as a matter of law.”2

1

Defendant AT&T’s motion for summary judgment is pending. (ECF No. 38.)

2

Fed. R. Civ. P. 56(c).
1

When deciding a motion for summary judgment, the court must review all the evidence and
draw all reasonable inferences in favor of the non-movant.

3

In reviewing a motion for

summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party, and it “may not make credibility determinations or weigh the evidence.”4
When the motion is supported by documentary proof such as depositions and
affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some
“specific facts showing that there is a genuine issue for trial.” 5 These facts must be more
than a scintilla of evidence and must meet the standard of whether a reasonable juror could
find by a preponderance of the evidence that the nonmoving party is entitled to a verdict.6
The Court should ask “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of
law.”7 The Court must enter summary judgment “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case and on which
that party will bear the burden of proof at trial.”8
As an initial matter, the Court notes that both parties have expended considerable
effort arguing that the opposing party has not sufficiently complied with Rule 56.1 of the

3

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

4

Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014).

5

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Eastham v. Chesapeake Appalachia,
L.L.C., 754 F.3d 356, 360 (6th Cir. 2014).
6

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

7

Id. at 251–52.

8

Celotex, 477 U.S. at 322.
2

Local Rules of this Court.9 AT&T contends that, instead of submitting a “concise statement
of facts, the Plaintiff has filed a multi-paragraph, multi-sentence, unstructured broad based
jumble of references to the Plaintiff’s deposition testimony and to her deposition exhibits.”10
AT&T further contends that “[m]any of the paragraphs contain lengthy recitations that are
neither material to nor relevant to the legal conclusion for which summary judgment is
sought” and that “[s]ome of the recitations are incorrect.”11 AT&T objects to Plaintiff’s
statement of facts “in their entirety for non-conformity with the requirements of Local Rule
56.1(a).”12
Local Rule 56.1(a) requires that any motion for summary judgment be “accompanied
by a separate, concise statement of the material facts as to which the moving party contends
there is no genuine issue for trial.”13 As noted by Plaintiff, the local rules do not define

9

(Resp., pp. 1-3, ECF No. 46; Reply, pp. 1-4, ECF No. 52.)

10

(Resp, p. 1, ECF No. 46.)

11

(Id. at pp. 1-2.)

12

(Id. at p. 2.)

13

Local Rule 56.1 provides as follows:
(a) Moving Party. In order to assist the Court in ascertaining whether there are
any material facts in dispute, any motion for summary judgment made
pursuant to Fed. R. Civ. P. 56 shall be accompanied by a separate, concise
statement of the material facts as to which the moving party contends there is
no genuine issue for trial. Each fact shall be set forth in a separate, numbered
paragraph. Each fact shall be supported by a specific citation to the record. If
the movant contends that the opponent of the motion cannot produce evidence
to create a genuine issue of material fact, the proponent shall affix to the
memorandum copies of the precise portions of the record relied upon as
evidence of this assertion.....
(b) Non-moving Party. Any party opposing the motion for summary judgment
must respond to each fact set forth by the movant by either:(1) agreeing that
the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose
of ruling on the motion for summary judgment only; or (3) demonstrating that
3

“concise statement,” and she argues that her facts are “concise” within the meaning of the
local rules.14
In denying a motion to strike the defendant’s statement of undisputed material facts,
the District Court for the Middle District of Tennessee determined that the defendant did not
violate a local rule on conciseness that was worded similarly to the local rule at issue in this
case because the dispute was “factually rich” and involved incidents occurring over a period
of time.15 The Court agreed with the defendant that all of the facts contained within the
statement were “‘relevant and material’ either directly or as ‘both background and [ ]
foundation for the incidents which form the basis of Plaintiff’s causes of action’ and that [the
defendant] was not trying to burden the plaintiff but merely generate a ‘complete record.’”16
Likewise, this case is fact-intensive. Plaintiff’s statement of facts is based on over
8,000 pages of discovery and consists of only ten pages with twenty-seven numbered
paragraphs that address the facts underlying this lawsuit.17 Although the paragraphs have

the fact is disputed. Each disputed fact shall be filed with any memorandum in
response to the motion. The response must be made on the document provided
by the movant or another document in which the non-movant has reproduced
the facts and citations verbatim as set forth by the movant. In either case, the
non-movant must make a response to each fact set forth by the movant
immediately below each fact set forth by the movant. In addition, the nonmovant's response may contain a concise statement of additional facts that the
non-movant contends are material and as to which the nonmovant contends
there exists a genuine issue to be tried. Each such disputed fact shall be set
forth in a separate, numbered paragraph with specific citations to the record
supporting the contention that such fact is in dispute.
14

(Reply, p. 4, ECF No. 52.)

15

See Thompson v. Davidson Transit Org., 740 F. Supp.2d 938, 938–39 (M.D. Tenn. 2010).
See also Day v. Finishing Brands Holding, Inc., 2015 WL 2345279127 * 1 (W.D. Tenn. May
14, 2015) (citing Thompson).
16

Thompson, 740 F. Supp.2d at 939.

17

(Reply, p. 4, ECF No. 52.)
4

multiple sentences, each sentence is related to the subject of the paragraph and is, therefore,
neither “unstructured” nor a “broad based jumble of references” to the deposition testimony
and exhibits.
While AT&T is correct that Plaintiff’s “Exhibit S”18 is actually an assessment by
Allison Bigelow, a psychologist, rather than Dr. Akin, a psychiatrist, this one misnomer does
not affect the content of the psychological assessment.19 Accordingly, the Court finds that
Plaintiff’s statement of undisputed facts meets the criteria set forth in Local Rule 56.1(a).20
However, Plaintiff’s argument that AT&T is not in compliance with the Federal Rules
of Civil Procedure or the local rules of this Court is meritorious. AT&T filed a memorandum
in response to Plaintiff’s motion21 but did not file a separate response to Plaintiff’s statement
of facts with citations to the record, nor did AT&T submit its own statement of additional
facts.
As noted above, the local rules of this Court require motions for summary judgment to
“be accompanied by a separate, concise statement of the material facts as to which the
moving party contends there is no genuine issue for trial.”22 Plaintiff complied with the local

18

(ECF No. 42-9.)

19

The assessment by Dr. Bigelow states that Plaintiff was under the care of Dr. Akin
Ojuwake, psychiatrist. Although AT&T asserts that “some” of Plaintiff’s citations to the
record are “incorrect,” (Resp., p. 2, ECF No. 46), this is the only example given by AT&T.

20

To the extent that Plaintiff has presented any facts that are not material or relevant to the
issues presented by her motion, the Court will disregard those facts except as necessary to
provide context or background. C.f. Hillman v. Shelby Cty., 2012 WL 681778 at *1 (W.D.
Tenn. Feb. 29, 2012) (“[C]ourts in the Western District of Tennessee do not strike
inadmissible portions of affidavits; instead, they disregard the inadmissible testimony in their
evaluation of the summary judgment motion before them.”)
21
22

(ECF No. 46.)

LR 56.1(a), Local Rules of the United States District Court for the Western District of
Tennessee.
5

rules by submitting such a statement of facts.23 Any party opposing summary judgment must
respond to each fact stated by the movant by agreeing that it is undisputed, agreeing that it is
undisputed for purposes of ruling on the summary judgment motion only, or by demonstrating
that the fact is disputed, with specific citations to the record.24 “Failure to respond to a
moving party’s statement of material facts ... shall indicate that the asserted facts are not
disputed for purposes of summary judgment.”25 Rule 56(e) of the Federal Rules of Civil
Procedure also provides that if a party “fails to properly address another party’s assertion of
fact ..., the court may consider the fact undisputed for purposes of the motion.”26
Because AT&T failed to properly respond to Plaintiff’s statement of facts, those facts
will be accepted as true for the purpose of deciding this motion.27 The Court must now
consider whether the undisputed facts show that Plaintiff was disabled as defined by 42
U.S.C. § 12102(1). The Court concludes that they do.
Plaintiff has presented the following undisputed facts in support of her motion for
partial summary judgment.28

23

(ECF 40-2.)

24

LR 56.1(b).

25

LR 56.1(d).

26

Fed. R. Civ. P. 56(e)(2).

27

See, e.g., Meraz v. El Charro Billiards, LLC, 2013 WL 5593062 (Oct. 10, 2013) (“El
Charro has failed to respond to the Motion and the time to do so has passed. W.D. Tenn. L.R.
56.1(b). The facts asserted in Meraz’s Statement of Undisputed Facts are taken as true for
purposes of this Motion.”); Akines v. Shelby Cnty. Gov’t, 512 F. Supp.2d 1138 (W.D. Tenn.
2007) (explaining that, when the non-moving party fails to follow the local rule in responding
to a motion for summary judgment, courts in this judicial district “consider the [moving
party’s] statement of undisputed material facts as having been admitted”).
28

(ECF No. 40-2.) The following facts relate to the issue of whether Plaintiff is disabled
under the ADA. Facts that relate to the issue of whether AT&T reasonably accommodated
Plaintiff’s disability will be examined in the order on AT&T’s motion for summary judgment.
6

Plaintiff was a Customer Service Representative with AT&T from 2006 to July 3,
2014, when she was terminated. Her job was to answer inbound calls and assist with technical
support and billing at AT&T’s call-center.
Plaintiff has been treated for depression by Dr. Atkin since 2007 until the present.29
During periods of depression and anxiety, those impairments negatively affected her mood
and ability to concentrate, think, learn, and communicate. As a result of her depression and
prescribed medications, she also suffered from fatigue and difficulty sleeping, and she grew
tearful. Her depression and anxiety affected her appetite, caused her to avoid social settings,
avoid housework and exercise, neglect personal grooming, prevented her from cooking
because she burned herself and the food, and limited her ability to care for her young son.
Plaintiff made job accommodation requests in late 2012 and May 2013 because of her
mental health problems. She was granted Short Term Disability benefits (“STD”) from
September 6, 2013, until November 18, 2013, and again from December 3, 2013, to January
20, 2014. Plaintiff applied for leave under the Family Medical Leave Act (“FMLA”) on
December 12 and 20, 2013, January 10 and 13, 2014, April 4 and 29, 2014, and May 15 and
30, 2014, based on depression and the need for treatment.
On April 9, 2014, Plaintiff notified AT&T’s Integrated Disability Service Center
(“IDSC”) that she left work mid-shift because of her depression and anxiety. She also
informed IDSC that she had arranged a mental health appointment but it would not occur for
two weeks because she was a new patient. On April 10, IDSC’s internal notes corroborate
Plaintiff’s diagnosis relating to “mental health” and “date loss: 04/09/2014.” On April 23,

29

The assessment states that Plaintiff was under the care of Dr. Akin Ojuwake, psychiatrist.
(ECF No. 42-9.) It appears that “Dr. Atkin” and Dr. Ojuwake are the same individual.
However, it is not necessary at this juncture for the Court to resolve the difference in
nomenclature.
7

medical evaluation forms were returned to IDSC. This paperwork showed that Plaintiff had
been diagnosed with depressive disorder and anxiety. Plaintiff’s medical provider was FNP
Laura Thompson, and Dr. Candace Thompson provided psychiatric treatment. Plaintiff’s
conditions affected her concentrating, learning, thinking, and communicating.
On April 28, 2014, IDSC’s internal notes record Plaintiff’s “difficulty sleeping” …
“abnormal interrupted thoughts … caused by depression and anxiety” … “needs through
8/15/14” … “1) 10 min break every 2 hrs, 2) flex start time [and 3)] modified break time for
anxiety attacks.”
On May 1, 2014, Plaintiff began treatment at Psycamore, LLC. On May 5, Plaintiff
called IDSC, stating that “she is now attending [Partial hospital program].” On May 7, IDSC
received an Initial Physician Statement (“IPS”) from Psycamore. This documentation
recorded Plaintiff’s severe depression, its effects on her sleeping, difficulty arriving on time,
cognitive impairment, and her need for intensive therapy Monday through Friday for the next
six weeks.
On May 12, an e-mail exchange between IDSC and Human Resources confirmed that
Plaintiff had called Priscilla Adams, AT&T’s Employee Relations Manager “this morning”
and “wouldn’t be returning to work today [or in May] because she is in a program.” On May
14, IDSC sent a letter to Plaintiff approving STD from April 17 to May 27 but requiring
further medical documentation by May 26 if Plaintiff was unable to return to work.
IDSC’s internal records cited documentation that confirmed Plaintiff’s depression that
affected her appetite, sleeping, and concentration and that she was seen on May 1, 2, 5, 6, and
7 “in IOP,” i.e., intensive outpatient program. IDSC recorded that Plaintiff was in treatment
that “impairs her ability to perform […] occupation even on part time basis.” On May 19,
Psycamore faxed medical documentation which restated details previously provided about
8

Plaintiff’s depression, how it affected her daily life, the request for a modified schedule and
projected end date of treatment, and added a comment about her “difficulty sleeping due to
due to depression and anxiety.”
On May 23, Plaintiff notified IDSC that she was discharged by Dr. Madikisira at
Psycamore on May 21. Plaintiff had an appointment on “05/29/2014, with Laura Thompson”
to be referred to another psychiatrist. On May 27, IDSC received documentation from Dr
Madikisira at Psycamore stating that Plaintiff was discharged for noncompliance and could
return to work as of May 23. However, on the same date of her discharge, Plaintiff was still in
therapy Monday through Friday and had been projected by Dr. Madikisira to remain in
treatment until June 13. On the day of her discharge, Plaintiff signed up for treatment with
HealthQuest. On May 28, Plaintiff reminded IDSC of her appointment on May 29. Plaintiff
also called Attendance-Manager Lisa Todd-Kyle (“Manager Todd”) to let her know that her
STD claim was denied but she remained under a doctor’s care for depression and anxiety.
On May 30, Plaintiff again made a request for FMLA because of depression and
provided medical documentation in support. On June 2, IDSC sent a letter to Plaintiff denying
her STD as of May 28.
On June 3, Plaintiff called Manager Todd and confirmed that she remained in
treatment for depression and anxiety and was unable to return to work by June 10. On June
11, IDSC received paperwork from Debra Butler, LCSW, with HealthQuest, documenting
Plaintiff’s depressed mood, increased anxiety with panic attacks, sleep and appetite
disturbance, and rapid mood swings. Butler was program manager of HealthQuest and a
licensed therapist. Butler estimated Plaintiff’s treatment would continue for about four to six
weeks. Butler confirmed that Plaintiff was “admitted to [intensive outpatient program] on
6/10/14” and in treatment three times a week with each session being three hours. On June 13,
9

Manager Todd called Plaintiff and was told that she was in week two of a ten week treatment
program and more medical documents would be submitted.
On June 12, The Transformation Center, which operates therapy groups exclusively
for women, submitted paperwork to IDSC. These documents were signed by Allison Bigelow,
Ph.D./HSP. The paperwork listed Plaintiff’s anxiety, depression, poor memory, and difficulty
concentrating related to depression. The documents included a statement by Dr. Atkin
referring to Plaintiff’s January 2013 “breakdown – psychosis, paranoia, severely disorientated
– occurred at work.”30
On June 16, Butler faxed medical documents to IDSC and called to confirm that
Plaintiff was under the care of her primary care provider between May 22 and June 9, the date
she began treatment with HealthQuest.

On June 17, Plaintiff faxed additional medical

documents concerning her diagnosis of depression.
On June 20, IDSC received a fax from HealthQuest. This paperwork included an
Initial Treatment Plan, dated June 10, estimating length of stay to be four to six weeks. It
listed Plaintiff’s anxiety, panic attacks, depression, and sleep difficulty and projected her
return to work as August 6. Additionally, IDSC received notes about the therapy that Plaintiff
had received on June 11, 16, 17, and 18, 2014.
On June 24, IDSC received a fax from The Transformation Center with an initial
assessment of Plaintiff dated June 3, a history and current assessment of Plaintiff’s depression
and anxiety, which negatively affected her memory, and stating that its treatment program
would begin that same date.
Plaintiff was fired as of July 3 for “job abandonment and unsatisfactory attendance.”
On August 8, IDSC reversed its denial of Plaintiff’s STD and approved coverage for
30

See note 31 supra.
10

disability benefits from May 28 to July 2, 2014.
The ADA provides, in relevant part, that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment.”31 “Merely having an impairment does not make one disabled for purposes of
the ADA.”32 Instead, “[a]n individual is considered ‘disabled’ under the ADA if she (1) ‘has
a physical or mental impairment that substantially limits one or more of the major life
activities of such individual,’ (2) ‘has a record of such impairment,’ or (3) is regarded by her
employer as having such an impairment.”33 Plaintiff contends that her depressive disorder and
anxiety are mental impairments that substantially limited one or more of her major life
activities at the time of the relevant events and that she had a record of such impairments.34
Under the first prong of the ADA’s definition of disability, Plaintiff must show not
only that she actually has a mental impairment but also that such an “impairment [ ]
substantially limit[ed] one or more major life activities.”35 It is undisputed that Plaintiff
suffered from the mental impairments of depressive disorder and anxiety as shown by the

31

42 U.S.C. § 12112(a).

32

Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 195 (2002).

33

Gruener v. Ohio Casualty Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008) (quoting Sullivan v.
River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999)); see also 42 U.S.C. § 12102(2).
34

Depression and anxiety meet the EEOC definition of mental impairment. § 1630.2(h)(1) &
(2).

35

42 U.S.C. § 12102(1)(A).
11

medical evidence in the record,36 and Plaintiff points to ways that she contends that her
depressive disorder and anxiety substantially limited her performance of several major life
activities, e.g., her ability to concentrate, think, learn, communicate, socialize, perform
housework, maintain personal grooming, sleep, eat, cook, care for her child, and prevent
mood swings and abnormal thoughts.
The ADA, as amended by the ADA Amendment Act of 2008 (“ADAAA”), rejected
the demanding definition for “substantially limits” that the Supreme Court had laid out in
Toyota Motor Mfg., Ky., Inc. v. Williams.37 That standard required an individual to be
prevented or severely restricted from doing activities that were of central importance to most
people’s daily lives. The term “substantially limits” is now “interpreted and applied to require
a degree of functional limitation that is lower than the standard for ‘substantially limits’
applied prior to the [2008 Amendments]”38 and is based on how the individual functions as
compared to the general population.39 “An impairment is a disability within the meaning of
this section if it substantially limits the ability of an individual to perform a major life activity
36

In its response, AT&T argues that “it is not clear” from the record “what the duration of
the alleged impairment was.” (Resp., p. 3, ECF No. 46.) Plaintiff’s statement of undisputed
facts references medical records showing, inter alia, a diagnosis of depressive disorder and
anxiety on April 11, 2014 (¶ 6), intensive treatment at Psycamore LLC beginning May 1,
2014 (¶ 10), a physician’s statement from Psyamore dated May 7 noting “severe depression”
(id.), documentation from HealthQuest on June 11, 2014, noting depression and increased
anxiety with panic attacks and rapid mood swings (¶ 17), a psychological assessment signed
by Plaintiff’s psychiatrist on June 3, 2014, that referenced Plaintiff’s January 2013
“breakdown” and “psychosis, paranoia” and severe disorientation (¶ 20), and a statement
from Plaintiff’s provider on June 13, 2014, that Plaintiff was in week two of a ten week
program (¶ 18). (Pl’s SOF, ECF 40-2.) At a minimum, the evidence shows that Plaintiff’s
mental impairments began in January 2013 and lasted through her termination date of July 3,
2014. Under the ADA, “[a]n impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.” 42 U.S.C. § 12102.

37

534 U.S. 184, 197 – 199 (2002).

38

29 C.F.R. § 1630.2(j)(1)(iv).

39

Id. at § 1630.2(j)(ii).
12

as compared to most people in the general population....”40 The list of “major life activities”
was broadened in 2008 to include, but is not limited to, “caring for oneself, performing
manual tasks … sleeping .... speaking … learning, reading, concentrating, thinking,
communicating, and working.”41
Under the amended statute, both the definition of “disability” and the term
“substantially limit” are to be construed in favor of broad coverage.42 Additionally, the
regulations indicate that “substantially limits” is “not meant to be a demanding standard.”43
In amending the ADA, Congress sought to “help move the focus from the threshold issue of
disability to the primary issue of discrimination.’’44 Congress intended that using a new lower
standard would “make the disability determination an appropriate threshold issue but not an
onerous burden for those seeking accommodations or modifications.’’45
AT&T argues that expert testimony is needed to show a causative link between
Plaintiff’s mental impairments and the limitations of a major life activity as compared to the
40

Id.

41

42 U.S.C. 12102(2)(A).

42

Id. at § 12102(4)(A).

43

29 C.F.R. § 2630.2(j)(1)(i). The regulations are not controlling, Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65 (1986); instead, they represent “a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Id. (internal
quotations omitted). However, as a general matter, deference should be given to an agency’s
interpretation of a regulation when the agency has been given responsibility to issue
regulations under the statute in question, to explain the responsibilities of those concerned
under the statute, and to enforce the statute in court. See Bragdon v. Abbott, 524 U.S. 624,
646 (1998).

44

76 Fed. Reg. 16978, 17009, 2011 WL 1060575 (Mar. 25, 2011) See also id. at 17000
(“The ADAAA and the EEOC’s regulations also make clear that the primary object of
attention in cases brought under the ADA should be whether entities covered under the ADA
have complied with their obligations, not - whether the individual meets the definition of
disability. ADAAA Section 2(b)(5).”)

45

Id.
13

general populace “to a reasonable degree of medical certainty.”46 AT&T has not cited any
law in support of its argument that such testimony is necessary. To the contrary, Congress
amended the ADA to lessen the need for “costly experts to address ‘disability’ and streamline
the issues requiring judicial attention.”47 Moreover, the EEOC Enforcement Guidance on the
Americans with Disabilities Act and Psychiatric Disabilities provides that “[e]xpert testimony
about substantial limitation is not necessarily required. Credible testimony from the individual
with a disability and his/her family members, friends, or coworkers may suffice.”48
In the present case, AT&T has not refuted Plaintiff’s testimony that her depression
and anxiety negatively affected her mood, ability to concentrate, think, learn, communicate,
and her appetite; caused her to suffer fatigue; led to difficulty sleeping; lessened her ability to
prevent herself growing tearful; affected her punctuality; caused her to avoid social settings,
housework, and exercise and neglect personal grooming; and prevented her from cooking
because she burned herself and the food.49 The medical record also shows that Plaintiff’s
depression affected her sleeping, her ability to arrive on time, and her cognitive skills.50
The determination of whether a plaintiff’s impairment “substantially limits” a major

46

(Resp., p. 4, ECF No. 46.)

47

76 Fed. Reg. 16978, 16997, 2011 WL 1060575 (Mar. 25, 2011). See also 29 C.F.R. §
1630.2(j)(1)(v), (j)(1)(vi) (A “comparison of an individual’s performance of a major life
activity to the performance of the same major life activity by most people in the general
population usually will not require scientific, medical, or statistical analysis,” and any
“determination of whether an impairment substantially limits a major life activity shall be
made without regard to the ameliorative effects of mitigating measures.”)

48

http://www.eeoc.gov/policy/docs/psych.html. This guidance predates the 2008 amendment
which “made it easier for an individual seeking protection under the ADA to establish that he
or she has a disability.” http://www.eeoc.gov/laws/regulations/adaaa_fact_sheet.cfm.

49

(Pl’s SOF, ¶ 2, ECF No. 40-2.)

50

(Id. at ¶ 10.)
14

life activity requires an individualized assessment that compares the person’s ability to
perform the activity as compared to most people in the general population.51

EEOC

regulations seek to make this process more “predictable, consistent, and workable” by listing
specific impairments and the life activities that they commonly impact.52 These impairments
will “virtually always be found to impose a substantial limitation on a major life activity.”53
Regarding Plaintiff’s impairments, “it should easily be concluded that … major depressive
disorder … substantially limit[s] brain function.”54
The regulations, by using the words “virtually always” and “should easily be
concluded,” create a strong presumption, which AT&T has not refuted, that Plaintiff’s severe
depressive disorder and anxiety substantially affected a wide range of major life activities as
compared to persons not suffering from those same impairments. Accordingly, Plaintiff is
entitled to judgment as a matter of law on the issue of whether she had an actual impairment.
Plaintiff also contends that her severe depressive disorder and anxiety are disabilities
covered by the ADA because AT&T had a record of Plaintiff’s impairments. A plaintiff has a
“record of impairment” if she “has a history of, or has been misclassified as having, a mental
or physical impairment that substantially limits one or more major life activities.”55 This
prong includes “people who have recovered from previously disabling conditions ... but who

51

See 42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.2(j).

52

29 C.F.R. § 1630.2(j)(3)(i).

53

Id. at § 1630.2(j)(3)(ii).

54

Id.

55

MX Group, Inc. v. City of Covington, 293 F.3d 326, 339 (6th Cir. 2002); 28 C.F.R. §
35.104 (2005); 29 C.F.R. § 1630.2(k).
15

may remain vulnerable to the fears and stereotypes of their employers.”56 The plaintiff only
needs to show that “at some point in the past” she had a substantially limiting impairment.57
However, “some diagnosis must explain the duration or severity of the impairment,” and
“self-described symptoms” . . . “without corroborating medical evidence or any diagnosis are
insufficient to establish a substantial limitation on a major life activity.”58
Here, it is undisputed that AT&T was repeatedly notified by Plaintiff and her medical
providers of her depression and anxiety. Defendant received Plaintiff’s requests for STD and
leave for depression and eventually granted it; paperwork signed by physicians and therapists
was submitted by Plaintiff’s medical providers in April, May, June and July, 2014; and
AT&T received numerous telephone calls from Plaintiff and medical providers regarding
Plaintiff’s mental impairments, how the impairments affected her daily life activities, and her
need for ongoing treatment. Plaintiff’s undisputed facts show that AT&T was aware that
Plaintiff was in treatment for depression in April, May, June, and July 2014. All this
documentation records Plaintiff’s depression, anxiety and ongoing need for treatment of those
impairments. Accordingly, the Court finds as a matter of law that AT&T had a record of
Plaintiff’s mental impairment, and, therefore, she was disabled as defined by the ADA.
Because the undisputed facts show that, at all times relevant, Plaintiff was defined as
56

Spence v. Donahoe, 515 F. App’x 561, 570 (6th Cir. 2013) (quoting Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 509 (7th Cir. 1998)).

57

Knight v. Metro. Gov’t of Nashville & Davidson Cnty., Tn., 136 F. App’x 755, 760 (6th
Cir. 2005) (holding that a police officer who was not presently impaired, but who was
previously injured on the job and received disability pensions for twenty years, during which
time he worked intermittently, had raised a factual dispute as to whether he had a record of
disability) (citing Lloyd v. E. Cleveland City Sch. Dist., 232 F. Supp.2d 806, 812 (N.D. Ohio
2002)).
58

See Rader v. Upper Cumberland Human Res. Agency, 2016 WL 1118211 at *7 (M.D.
Tenn. Mar. 22, 2016) (quoting Neely v. Benchmark Family Servs., 2016 WL 364774 at *5
(6th Cir. Jan. 26, 2016)).
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disabled under the Americans with Disabilities Act (as amended), 42 U.S.C. § 12101 et seq.
under both the “actual impairment” and “record of impairment” prongs, she is entitled to
partial summary judgment, and her motion is GRANTED.
IT IS SO ORDERED.

s/ S Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

Date: May 16, 2016.

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