Williams v. AT&T Mobility Services, LLC

Filing 61

ORDER GRANTING DEFENDANTS MOTION 38 FOR SUMMARY JUDGMENT. Signed by Judge S. Thomas Anderson on 6/6/2016. (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 DEFENDANT’S MOTION FOR 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.) Defendant AT&T has filed a motion for summary judgment. (ECF No. 38). Plaintiff
has filed a response to the motion (ECF No. 47-1), and Defendant has filed a reply to the
response.

(ECF No. 51.) For the reasons set forth below, Defendant’s motion is

GRANTED.1
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
When deciding a motion for summary judgment, the court must review all the evidence and
1

On May 16, 2016, the Court granted Plaintiff’s motion 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). (Order, ECF No. 53.)

2

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

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
Statement of Facts
Initially, Defendant AT&T contends that Plaintiff has not sufficiently complied with
Rule 56.1 of the Local Rules of this Court in her response.9 According to Defendant,
Plaintiff’s sixty-three page response to its statement of undisputed facts is “a hodge podge of
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
9

Celotex, 477 U.S. at 322.
(Reply, pp. 1-3, ECF No. 51.)
2

non-answers, argument, or challenges to the inferences the Plaintiff reads into the facts
stated.”10
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.”11 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

10

(Id. at p. 2.)

11

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
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.
3

fact is disputed, with specific citations to the record.12 “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.”13 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.”14
As this Court stated in a previous case, “Argument in responses to statements of
material facts clouds issues….”15 In this case, despite Plaintiff’s “clouding of the issues” by
inserting argument and unsupported inferences in her response to Defendant’s statement of
facts,16 the Court is able to discern factually based disputes and whether those disputed are
material and will make its decision accordingly. To the extent that Plaintiff has presented any
facts in her response that are not material or relevant to the issues presented by Defendant’s
motion, the Court will disregard those facts except as necessary to provide context or
background.17 The following facts are undisputed except as noted.18
Plaintiff was a Customer Service Representative with Defendant AT&T from 2006 to
July 3, 2014, when she was terminated. Her job was to answer inbound calls and assist with

12

LR 56.1(b).

13

LR 56.1(d).

14

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

15

Maverick Grp. Mktg., Inc. v. Worx Envtl. Products, Inc., 99 F. Supp. 3d 822, 827 (W.D.
Tenn. 2015).

16

(ECF No. 47.)

17

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.”)
18

(Def’s SOF, ECF No. 39; Pl’s Resp. to SOF, ECF No. 47.)
4

technical support and billing at Defendant’s Call Center.
Laura McArthur was the Attendance Manager, Lisa Todd-Kyle was the Attendance
Analyst, and Darcus Payne was the Area Manager for the Memphis Call Center employees,
including Plaintiff.
In performing her work as a Customer Service Representative, Plaintiff typically
fielded about forty telephone calls a day. She worked an eight hour shift which changed
every six months.
The job requires the Customer Service Representative to remain stationary for the
majority of an eight hour shift and potentially longer when overtime is required.

The

representative signs on to a computer and stays at the workstation with the exception of
allotted breaks and a lunch period.19
Among other performance standards, Plaintiff’s work as a Customer Service
Representative was subject to and governed by Defendant’s Attendance Guidelines. The
Attendance Guidelines state that regular attendance and timeliness are essential job functions
for every Customer Service Representative. The Guidelines state that repeated unscheduled
absenteeism may result in discipline up to and including termination.20
The Memphis Call Center accepts incoming customer service calls from all over the
nation. Call Center Workforce Management forecasts the volume of calls anticipated to be
routed to the Memphis Call Center and schedules the workforce accordingly. Peak call loads

19

Plaintiff’s response to Defendant’s statement of facts adds that she also left her desk for
meetings and training and that Defendant allowed her three additional breaks as an
accommodation beginning August 2012. (Pl’s Resp. to SOF, ¶¶ 3 – 4, ECF No. 47.)

20

Plaintiff’s response points out that the Guidelines allow for scheduled leave and other
excused absences. (Id. at ¶ 5.) Plaintiff also notes that her actual job description, as opposed
to the Attendance Guidelines, does not list regular attendance or timeliness as an essential
function. (Id.)
5

occur early in the morning and late in the evening.
Unscheduled time away from work by Customer Service Representatives negatively
impacts the level of and quality of service the representatives can offer customers. It forces
Defendant to spread the work anticipated to be covered by the absent representative over the
remaining representatives in attendance, increasing their call loads and potentially slowing
response time over the entire center.21 Longer wait times leads to customer frustration, and
workforce morale may suffer as a result of added job pressure.22
Under the Attendance Guidelines, “unscheduled time away” due to absences, late
arrivals, or early departures is tracked using an “unscheduled absence point system.”23
Absenteeism is measured based on a rolling twelve-month calendar. The Attendance
Guidelines state that “any unscheduled time away from your scheduled shift in excess of 8
total points in a rolling 12 months of active employment, regardless of reason, will be
considered unacceptable absenteeism and will result in termination absent extraordinary
21

Plaintiff disputes this fact to the extent that it implies that her absences were unscheduled.
The Court does not read Defendant’s statement as having any such implication. (Id. at ¶ 7.)
22

Plaintiff also disputes any implication in this statement that her absences were
unscheduled. (Id. at ¶ 8.) Again, the Court does not read the statement as having this
implication. Additionally, Plaintiff contends that Defendant has offered no “supporting
evidence or data” that longer wait times may lead to customer frustration and that workplace
morale may suffer as a result. (Id.) The Declaration of Darcus Payne, one of Defendant’s
area managers, was offered by Defendant in support of this statement and is made on the
“personal knowledge” of Payne. (ECF No. 38-2.) Customer reaction and workplace morale
are areas within the purview of an area manager. Therefore, Plaintiff’s argument is without
merit. See Counts v. Kraton Polymers, U.S. LLC, 260 Fed. App’x 825, 830 (6th Cir. 2008)
(“After reviewing the affidavit, we conclude that based on Mulford’s status as human
resources manager of Kraton, he was competent to make the statements contained in his
affidavit.”)
23

Rather than agreeing or not agreeing with this statement, Plaintiff argues that her leave was
not accurately recorded and that her requests for an accommodation under the ADA were
ignored. (Pl’s Resp. to SOF, ¶ 9, ECF No. 47.) Plaintiff’s argument is not responsive to
Defendant’s statement of fact, and Defendant’s statement as to its attendance policy is
deemed to be undisputed.
6

circumstances as determined by the Company in its sole discretion.”24
When an employee has an absence occurrence lasting more than eight calendar days in
the preceding twelve months of employment that is approved for short term disability
(“STD”) under Defendant’s benefit plan, the absence is excused when determining the
employee’s active employment.25
Absences incurred during a leave approved under the Family and Medical Leave Act
(“FMLA”) do not result in assessment of unscheduled absence points. But, absences due to
illness or injury that are not covered by FMLA or STD or which are not protected by
approved job accommodation will subject an employee to the accumulation of points under
the Attendance Guidelines.26
As with all employees, Plaintiff’s attendance history was maintained by Defendant
and was available for her review at her request. An employee’s attendance history shows
points incurred and the dates those points expire. A computer program tracks the attendance
point data, automatically calculates the expiration dates for attendance points assessed, and
takes into account any period of absence that extends the expiration dates for the points.27
Although Plaintiff missed work days in 2013, she was able to use a combination of

24

Again, Plaintiff attempts to use her response to this statement to argue that Defendant did
not maintain accurate records (id. at ¶ 10), and, again, the Court notes that Plaintiff’s
argument is not responsive to Defendant’s statement of fact, and Defendant’s statement is
deemed to be undisputed.
25

Plaintiff continues to make her non-responsive argument that Defendant did not maintain
accurate attendance records even though Defendant’s statement refers to its general
attendance policy and not how it was applied to Plaintiff. (Id. at ¶ 11.)
26

Plaintiff, again, does not dispute Defendant’s statement of its attendance policy but,
instead, its execution. (Id. at ¶ 12.)
27

Plaintiff disputes Defendant’s statement on the ground that the attendance policy was not
accurately applied to her or her co-workers. (Id. at ¶ 13.) See footnotes 23 – 26, supra.
7

approved STD and FMLA leave to avoid termination.28
Plaintiff was off work on STD from January through July 2013. She worked a few
days in August 2013. She resumed STD in September 2013, which continued throughout
October and part of November and December 2013.29
Plaintiff returned to work on January 20, 2014. Prior to her return, she had been
absent from work since December 3, 2013.30 At that time, Plaintiff’s points were below the
termination threshold. On January 30, 2014, and February 4, 2014, Plaintiff’s managers
discussed the attendance policy with her, and she stated her understanding of the policy.
On February 20, 2014, Plaintiff received her 2013 Performance Appraisal. As part of
the evaluation, her supervisor evaluated her performance as not meeting Defendant’s
expectations for “Attendance and Punctuality.”31
On March 11, 2014, Plaintiff reported to management that she had accessed a
customer’s account data more than once to verify her suspicions that the customer was having
an affair with her husband.

Plaintiff acknowledges that her action was a violation of

Defendant’s Code of Conduct.32
During the period between March 11, 2014, and Plaintiff’s last day of active work on
28

Plaintiff disputes this statement to the extent that it implies that Plaintiff did not qualify for
approved leave. (Id. at ¶¶ 14 - 15.) The statement contains no such implication. Defendant’s
statement plainly says that the leave was approved.

29

Plaintiff makes the same argument as she made for paragraphs fourteen and fifteen. (Id. at
¶ 16.) See footnote 28 above.
30

Plaintiff makes the same argument as she made for paragraphs fourteen, fifteen, and
sixteen. (Id. at ¶ 17.) See footnote 28 above.

31

Plaintiff does not dispute that she received a negative evaluation, but, instead, argues that
she did not deserve that kind of evaluation. (Id. at ¶ 19.)
32

Plaintiff attributes her action to her depression and anxiety. (Id. at ¶¶ 20 - 22.) Defendant
did not rely on this incident as a ground for Plaintiff’s termination, and, therefore, the Court
has not referred to the incident in its analysis of Plaintiff’s claims.
8

April 9, 2014, Plaintiff missed several days of work. Plaintiff was not physically present at
work from April 9 through the date of her termination on July 3, 2014.33
Plaintiff sought approval for her absences occurring after February 4, 2014, by having
the absences covered by either FMLA leave, STD, or a job accommodation.34
FMLA leave requests are handled internally by Defendant’s FMLA Operations Group.
STD benefit requests and job accommodation requests are handled for Defendant by a third
party administrator, Sedgewick Claims Management Services.35

Sedgewick’s Claims

Management Services manages Defendant’s Integrated Disability Service Center (“IDSC”).
The IDSC publishes a guide which was available to Plaintiff online and in print for use in
processing her STD and job accommodation claims.
Case Managers within the IDSC determine claims made for STD based on objective
medical information provided by an employee’s medical treatment providers. Only the IDSC
has the authority to determine whether claims made by an employee qualify for STD. STD is
awarded under Defendant’s Short Term Disability Plan as wage replacement benefits for the
employee’s temporary absence from work. Absences for which STD is awarded do not incur
attendance points under the Attendance Guidelines. Similarly, the IDSC determines whether
job accommodation requests are medically necessary by reviewing information provided by
an employee’s medical care provider. If a request is determined to be medically necessary,
33

Although Plaintiff does not dispute Defendant’s statement that she was not physically
present at work during this time period, she contends that she was seeking approved leave for
these days and had requested an accommodation under the ADA “which would have allowed
her back to work based on her request for a flexible/modified schedule.” (Id. at ¶ 24.)

34

Plaintiff objects to any implication in this statement that she should not have been granted
leave. (Id. at ¶ 25.) The Court does not read Defendant’s statement as containing any such
implication.
35

Plaintiff continues to dispute “inferences” in Defendant’s statements where there are none.
(Id. at ¶ 26.)
9

the IDSC contacts the employee’s work department which then confirms whether or not the
work accommodation can be provided.36
Plaintiff pursued STD benefits and a job accommodation because of her anxiety and
depression.
Plaintiff communicated with the IDSC over the provision of information by her
medical treatment providers to support her STD and job accommodation claims, talking with
them “20 or 30 times possibly.” There was also communication between Plaintiff’s medical
treatment providers and the IDSC.37
Plaintiff had unscheduled time away from work on March 12, 13, 16, 17, 20, 23, 24,
and 25, 2014, and on April 7, 8, and 9, 2014. Each of these absences incurred attendance
points under the Attendance Guidelines.38 Because she had not worked 1,250 hours in the
twelve months preceding her absences, Plaintiff was unable to use FMLA to cover her
unscheduled absences.
On April 10, 2014, the IDSC closed Plaintiff’s request for a job accommodation to
excuse her unscheduled absences on the ground that Plaintiff had failed to provide medical

36

Despite Plaintiff’s contentions (id. at ¶¶ 28 – 29), there are no negative “inferences” in
these statements.
37

Plaintiff’s response to this statement is confusing, to say the least. She disputes
Defendant’s statement that she was “in constant communication with the IDSC” about her
leave “to the extent the statement [implies] Defendant was unaware or not kept informed”
about Plaintiff’s requests for an accommodation. (Id. at ¶ 31 (emphasis added).) The
possible “inference” that Plaintiff seeks to refute is the opposite of what Defendant’s
statement actually says. Contradictorily, in addition to contending that the statement implies
that Defendant was not aware of her requests, she also objects to the statement to the extent
that it implies that Defendant was more aware than it actually was. (Id.) Plaintiff’s
deposition testimony that she talked to the IDSC “20 or 30 times possibly” speaks for itself.

38

Plaintiff states that these dates should have been covered by her request for an ADA
accommodation, but she does not dispute that she actually received attendance points for the
dates. (Id. at ¶ 32.)
10

information to support her request.39
Beginning April 10, 2014, Plaintiff sought to cover her absences from that date going
forward by having them treated as either STD or job accommodation absences.40 On April
29, 2014, after review of the submitted medical information, the IDSC approved STD for
Plaintiff’s absences from April 10, 2014, through April 27, 2014.41 The IDSC denied STD
for Plaintiff’s absences from April 27, 2014, going forward on the ground that Plaintiff had
not provided sufficient medical information.42
Because Plaintiff’s absences from April 27, 2014, were not excused, Defendant issued
Plaintiff a letter directing her to return to work by May 12, 2014. In discussions with
Defendant’s Attendance Analyst, Plaintiff stated she could not return to work during the
month of May and that she would continue to have medical information sent to the IDSC.43
After a review of additional submitted medical information, the IDSC approved STD

39

Plaintiff does not dispute the fact that her request for a job accommodation was closed for
the stated reason. (Id. at ¶ 34.) Instead, she argues that she cooperated with Defendant as
best she could but that her medical appointment was after the deadline for submitting
paperwork to Defendant and Defendant would not grant her any further extensions of time.
(Id.)

40

Plaintiff disputes this fact to the extent that it implies that she only began seeking an ADA
accommodation on April 10. (Id. at ¶ 35.) The Court does not read this statement as having
such an implication.

41

Plaintiff disputes this fact to the extent that it implies that she only requested leave from
April 10 to April 27, 2014, and for the leave to be covered by STD instead of the ADA. (Id.
at ¶ 36.) Again, the Court does not read the statement as having this implication.

42

Plaintiff contends that this ground was not reasonable but does not dispute that this was
Defendant’s stated reason for denying her additional STD leave. (Id. at ¶ 37.)

43

Nothing in this sentence implies that Plaintiff did not ask for a flexible work schedule as an
ADA accommodation. (Id. at ¶ 38.) In fact, the crux of Plaintiff’s claim is that Defendant
denied her request for a flexible work schedule as a “reasonable accommodation” under the
ADA.
11

for Plaintiff’s absences from April 28, 2014, through May 27, 2014.44 On May 28, 2014, the
IDSC denied STD for Plaintiff’s absences May 28, 2014, and thereafter on the ground that
she had provided insufficient medical information.45 Subsequently, Plaintiff was sent a letter
directing her to return to work by June 10, 2014, in order to remain employed.46
Plaintiff did not return to work by June 10, 2014. As of June 11, 2014, she had
accumulated twenty-six attendance points, which was in excess of the eight point threshold
for termination stated in the Attendance Guidelines.47 Defendant began the process for
obtaining approval of Plaintiff’s termination from employment for accumulation of excessive
attendance points and for job abandonment for failure to return to work as directed.48
Plaintiff’s record of attendance prior to her termination shows that she received
warnings regarding her attendance point accumulations each year of her employment from
2007 through 2014, with a final written warning for attendance being issued to her on March
44

There are no untoward inferences to be drawn from this statement of fact.

45

Plaintiff does not dispute that this was the stated ground for the denial of her leave.
Instead, she argues that the denial was not reasonable. (Id. at ¶ 40.)

46

Again, Plaintiff does not dispute this fact itself but, rather, argues that the demand for her
to return to work was not reasonable. (Id. at ¶ 41.)
47

Plaintiff contends that Defendant’s attendance policy was not applied consistently and,
again, argues that Defendant ignored her requests for an accommodation under the ADA. (Id.
at ¶ 42.) Plaintiff also states that she was not warned that she was accumulating attendance
points that could be used for discipline or termination, even though she acknowledges that the
Attendance Guidelines contain such a provision. (Id.; Pl’s Resp., p. 4, ECF No. 47-1.) None
of these arguments is responsive to Defendant’s statement of fact. Finally, Plaintiff contends
that Defendant did not calculate her attendance points correctly because Defendant allegedly
erroneously assessed “penalty points” by recording her absences as “Illness – Unpaid” rather
than correctly listing the absences as “unexcused.” (Pl’s Resp. to SOF, ¶ 42, ECF No. 47.)
In its reply, Defendant has submitted the second declaration of its Attendance Manager, Laura
McArthur, which refutes Plaintiff’s assertion that her points were not calculated correctly.
(ECF No. 51-1.) According to McArthur, Defendant uses the code “ILLU” or “IllnessUnpaid” to describe an unpaid, unexcused absence that results in attendance points. (Id. ¶ 3.)

48

Plaintiff does not dispute that Defendant did, in fact, begin the process of seeking approval
for her termination. (Pl’s Resp. to SOF, ¶ 43, ECF No. 47.)
12

13, 2014.49
After June 11, 2014, Plaintiff’s medical care providers provided additional
information for the IDSC to review in consideration of her claims seeking STD or a job
accommodation for her unscheduled absences following May 27, 2014.50

Rather than

continue the termination process, Plaintiff’s management decided to have another return to
work letter sent to Plaintiff setting her return to work for June 30, 2014.51 Plaintiff responded
that she could not return to work on June 30, 2014.52 Plaintiff did not return to work on June
30, 2014.53
Plaintiff appealed the IDSC’s denial of STD for her absences from May 28, 2014,
going forward. After first determining that a successful appeal would still leave Plaintiff with
sixteen attendance points, Memphis Call Center Management made the decision to terminate
49

“Plaintiff concedes she received written warnings in 2007, 2008, 2009 and 2010,” but she
contends that she merely received counseling for attendance in 2011. (Id. at ¶ 44.) She also
acknowledges that her 2012 performance appraisal stated that “she failed to meet Defendant’s
expectations for attendance,” and she references a written warning that she received in 2014.
(Id.)
50

Plaintiff disputes this statement to the extent that it implies that Plaintiff and her medical
providers only began to submit information to the IDSC after June 11, 2014, or that she did
not have ongoing contact with Defendant about her absences. (Id. at ¶ 45.) There is no such
implication contained in Defendant’s statement. Defendant has already acknowledged that
Plaintiff had regular contact with the IDSC concerning her medical information and leave.
See footnote 37, supra.
51

Once again, rather than responding to Defendant’s statement, Plaintiff attempts to argue
her case, i.e., the statement is disputed to the extent it implies that Defendant was not on
notice of her treatment for depression and anxiety or her request for a flexible work schedule
as an accommodation and that Defendant did not accurately record her attendance points. (Id.
at ¶ 46.) Plaintiff’s arguments are not responsive to Defendant’s statement.
52

Plaintiff disputes this statement to the extent that it implies that she was able to return to
work or that she had not provided Defendant with enough information to qualify for STD or
ADA protection. (Id. at ¶ 47.) The Court has not drawn any such inferences from
Defendant’s statement.

53

Plaintiff notes that she was still in treatment for her depression on this date. (Id. at ¶ 49.)
13

Plaintiff’s employment as of July 3, 2014, for having incurred more than eight attendance
points in violation of Defendant’s Attendance Guidelines and for having abandoned her job
by not reporting to work.54
Plaintiff has submitted her own statement of undisputed facts as follows.55 Plaintiff
believes that her request for a flexible work schedule would involve an hour adjustment to her
start time. She needed this adjustment to her start time because, when she began her work
shift at 6:15 or 6:30 a.m., she would still be “cloudy” from her medicine, and it took a while
to get adjusted. Her request for a later start time did not mean that she would call and simply
say she could not make it to work on time, but, rather, she wanted a daily adjustment to the
start time for a matter of weeks or a month. She was also prepared to work later in the
evenings to make up for the later start time. Plaintiff interpreted her request for flexible
breaks to be ten minutes every two hours. Plaintiff believed that she “just needed to take a
moment to calm down after [a stressful call.]”56
Plaintiff applied for 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 need for treatment.
After these requests were denied, no one contacted Plaintiff to discuss other options to
accommodate or assist her with her depression. Plaintiff’s 2013 Appraisal was negatively
impacted by her approved leave in 2013.
Analysis
In her complaint, Plaintiff alleges that Defendant discriminated against her in violation

54

Plaintiff disputes that she had this many attendance points, but she does not dispute that
this was Defendant’s stated reason for terminating her. (Id. at ¶ 50.)
55

(Pl’s SOF, ECF No. 47-2.)

56

(Id. at ¶¶ 1, 2.)
14

of the ADA by refusing to permit her to work a flexible job schedule and giving her
additional leave. She also alleges that Defendant interfered with her right to engage in the
interactive process under the ADA. Finally, she alleges that she was terminated because of
her disability and in retaliation for her pursuit of a reasonable accommodation under the
ADA.57 Defendant has moved for summary judgment on the grounds that the undisputed
facts show that (1) “regular and predictable attendance is an essential function of the
Plaintiff’s job as a call center customer services representative”; (2) Plaintiff’s employment
was terminated because she violated Defendant’s Attendance Guidelines and abandoned her
job and not because she requested an ADA accommodation; (3) Plaintiff and Defendant did,
in fact, engage in an interactive process concerning Plaintiff’s request for a job
accommodation; and (4) Plaintiff’s request for a flexible work schedule was unreasonable as a
matter of law.58
Reasonable Accommodation Claim
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.”59 To establish a claim of failure to provide a reasonable accommodation, a
plaintiff must show that (1) she is disabled within the meaning of the ADA and that (2) she is
otherwise qualified for the job she holds despite her disability either without accommodation,
with an essential job requirement eliminated,
57

(Complt. at ¶¶ 1, 47, 52, ECF No. 1.)

58

(Def’s MSJ, ECF No. 38.)

59

42 U.S.C. § 12112(a).
15

or

with

a

proposed

reasonable

accommodation.60 If the plaintiff carries her burden, then the defendant employer bears “the
burden of proving that a challenged job criterion is essential, and therefore a business
necessity,” or that a proposed accommodation would impose an undue hardship on the
defendant.61
When the employee seeks an accommodation and claims that she would be qualified
to perform the essential functions of the job with such accommodation, the issues are whether
such accommodation is reasonable, whether such accommodation would impose an undue
hardship on the employer, and whether the plaintiff is capable of performing the job even
with the suggested accommodation.62 “The term essential functions means the fundamental
job duties of the employment position the individual with a disability holds or desires,” but it
does not include only marginal functions.63 An employee who cannot perform the job’s
essential functions is not a qualified individual under the ADA.64
The Court has previously determined as a matter of law that Plaintiff’s depression and
anxiety constitute a disability within the meaning of the ADA.65 Therefore, the Court must
now determine if Defendant is entitled to summary judgment on the issue of whether Plaintiff
is otherwise qualified for the job that she held despite her disability either without
60

See Cash v. Siegel-Robert, Inc., 548 Fed. App’x 330, 334 (6th Cir. 2013); see also Hedrick
v. Western Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004).
61

Hedrick, 355 F.3d at 452.

62

Id.

63

29 C.F.R. § 1630.2(n)(1).

64

Hoskins v. Oakland Cnty. Sherriff’s Dep’t, 227 F.3d 719, 724 (6th Cir. 2000). Any
argument by Defendant that Plaintiff is unqualified to perform her job rests on its argument
that she failed to comply with its attendance requirements that were an essential function of
her job.

65

(Order Grt’ing Pl’s MPSJ, ECF No. 53.)
16

accommodation, with an essential job requirement eliminated, or with a proposed reasonable
accommodation. The Court finds that Defendant is entitled to summary judgment because
Plaintiff cannot show that she can perform an essential function of her job with or without a
reasonable accommodation.
Plaintiff’s proposed “reasonable accommodation” was a flexible job schedule that
consisted of “an extension of unpaid leave for ongoing treatment of her major depressive
disorder, and, a flexible schedule involving up to 1 hour late start and finish times, with extra
breaks when needed for panic attacks.”66 Plaintiff testified that she had panic attacks up to
three times a day in response to “stressful” calls, and that there was no way to plan around
when she would receive a stressful call.67 The proposed flexible schedule would have lasted
“[a]s long as needed.”68
Plaintiff does not contend that she could do her job despite her disability without an
accommodation. Instead, she proposed an accommodation that, according to Defendant,
would have eliminated an essential job requirement, i.e., punctuality and regular attendance.
Accordingly, the Court must determine whether punctuality and regular attendance were
essential functions of Plaintiff’s job.

66

(Pl’s Resp., p. 14, ECF No. 47-1.) These unscheduled breaks were to be in addition to the
fifteen minute break Plaintiff ordinarily received after two hours of work, her lunch hour, and
a fifteen minute break two hours after lunch. (Pl’s Depo., pp. 109-111, ECF No. 37.)
Plaintiff admits that she was “‘often’ able to leave her work station at any time for restroom
breaks.” (Pl’s Resp., p. 3, ECF No. 47-1.) Additionally, Plaintiff acknowledges that
Defendant did, in fact, provide her with unpaid leave to accommodate her disability prior to
her termination through its STD policy. (Id. at p. 18 (stating that Defendant “tried to end run
the ADA by using the STD process to subsume all its obligations.”)).
67

(Pl’s Depo., pp. 110, 112, ECF No. 37.)

68

(Id. at p. 69.)
17

As explained in Denman v. Davey Tree Expert Co.,69
“A job function is essential if its removal would fundamentally alter the
position.” Kiphart v. Saturn Corp., 251 F.3d 573, 584 (6th Cir. 2001)
(quotations marks and citations omitted). The inability to attend work can
“fundamentally alter” a position which requires attendance to perform tasks.
Brenneman v. MedCentral Health Sys., 366 F.3d 412 (6th Cir. 2004)
(attendance can be an essential function of a position and excessive
absenteeism rendered an employee unqualified for position); Gantt v. Wilson
Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (employee who
cannot meet the attendance requirements of the job cannot be a “qualified”
individual protected by the ADA).
Defendant cites EEOC v. Ford Motor Co.,70 for the proposition that regular attendance is
generally an essential function of most jobs and that the ADA does “not endow all disabled
persons with a job - or job schedule - of their choosing.”71
Although Ford Motor Co. involved a telecommuting request by the plaintiff
employee, the reasoning of that case is instructive in the present case.72 The Court noted that
a “‘reasonable accommodation’ may include ‘job restructuring [and] part-time or modified
work schedules,’ but it does not include removing an ‘essential function [ ]’ from the position,
for that is per se unreasonable.”73 The Court relied on a “commonsense notion” in holding
that “[r]egular, in-person attendance is an essential function - and a prerequisite to essential
functions - of most jobs, especially the interactive ones.”74 The Court upheld the grant of

69

266 Fed. App’x 377, 380 (6th Cir. 2007).

70

782 F.3d 753, 757 (6th Cir. 2015).

71

Id. at 757, 761-63.

72

Telecommuting would not have been an option for Plaintiff because she would still have
been faced with the issues of being “cloudy” at the beginning of the work day and needing
breaks whenever she received a “stressful” call.

73

Id. at 761 (citations omitted).

74

Id. at 762-63.
18

summary judgment to Ford because “[r]egular and predictable on-site attendance was
essential for [the employee’s] position, and [the employee’s] repeated absences made her
unable to perform the essential functions of a resale buyer.”75
In this case, Defendant has presented unrefuted evidence that Plaintiff’s work as a
Customer Service Representative, also an “interactive” position, was governed by Attendance
Guidelines which stated that regular attendance and timeliness are essential job functions and
that repeated unscheduled absenteeism may result in discipline, including termination.76 It is
undisputed that Defendant’s Call Center must be staffed with a sufficient number of
representatives to service incoming call loads and that peak call loads occur early in the
morning and late in the evening.77 Plaintiff worked as part of a team responding to service
inquiries from customers seeking help in resolving problems with their phones or services
purchased.78 Her team worked eight hour shifts, with each Customer Service Representative
manning a computer and a telephone, answering and servicing as many as forty to fifty

75

Id. at 763. Plaintiff attempts to distinguish her case from Ford Motor Co. in that the
employee in that case was required to have some face-to-face contact with customers and had
previously tried a flexible work schedule and telecommuting which did not work out. (Pl’s
Resp., pp. 16-17, ECF No. 47-1.) These distinctions do not outweigh the Ford Motor Co.
Court’s reliance on the employer’s judgment and the consequences of not requiring the
plaintiff to attend work in the office in holding that attendance was an essential function of
the plaintiff's job. 782 F.3d at 762-63. Moreover, Plaintiff’s job required team work and a
high level of interaction with the public, as did the Ford Motor Co. employee’s job.
76

(Pl’s Resp. p. 4, ECF No. 47-1.) See Wagner v. Sherwin-Williams Co., 2015 WL 5174130
at *3 (E.D. Ky. Sept. 2, 2015), aff'd sub nom. Wagner v. Sherwin-Williams Co., 2016 WL
2641257 (6th Cir. May 10, 2016) (stating that, to determine what is an essential function of a
job, “the ADA itself provides two factors for courts to consider: ‘the employer’s judgment as
to what functions of a job are essential,” and any “written [job] description[s].’ 42 U.S.C. §
12111(8).”).
77

(Pl’s Resp. Def’s SOF, ¶¶ 6 -7, ECF No. 47.)

78

(Id. at pp. 47 - 49.)
19

telephone calls per day.79
Peak call loads occur early in the morning and late in the evening.80 The Call Center
must be staffed with a sufficient number of Customer Service Representatives to service
incoming call loads, and consistent and predictable attendance by the representatives staffing
the Call Center is critical to its efficient delivery of services.81
When a Customer Service Representative does not show up to work as scheduled, the
representatives who do report to work have their call volumes increased to pick up the slack.82
Morale problems are enhanced by unscheduled absences during peak call periods, and the
quality of customer service suffers.83 To function effectively, the Call Center depends on its
representatives to show up for and remain at work as scheduled.84
Plaintiff argues that work schedules may be modified as a job accommodation under
Defendant’s Integrated Disability Service Center Guide which provides that, if an employee’s
“condition requires a reduced work schedule or time off work (no matter the duration) that
does not qualify for disability benefits under your disability benefits plan and you are not

79

(Id.)

80

(Pl’s Resp. to SOF, ¶¶ 6 – 8, ECF No. 47.) See footnote 22, supra, rejecting Plaintiff’s
argument that Defendant offered no “supporting evidence or data” that longer wait times may
lead to customer frustration and that workplace morale may suffer as a result and finding that
the Declaration of Darcus Payne (ECF No. 38-2), one of Defendant’s area managers, in
support of this statement was made on the “personal knowledge” of Payne and was
admissible.

81

(Id.)

82

See footnote 78, supra. See also Payne Decl. (ECF No. 38-2.)

83

(Id.)

84

(Id.)
20

eligible for FMLA, a job accommodation specialist will assist you with your request.”85 She
contends that Defendant could have used other employees and contract workers to fill in for
her as needed.86 However, as explained in Belasco v. Warrensville Heights City Sch. Dist.,87
[T]he ADA does not require employers to accommodate individuals by
shifting an essential job function onto others.” Hoskins v. Oakland Cnty.
Sheriff's Dep’t, 227 F.3d 719, 729 (6th Cir. 2000). Likewise, the ADA does
not require employers to hire a second person to fulfill the job responsibilities
ordinarily performed by one person. Johnson v. Cleveland City Sch. Dist., 443
Fed. App’x 974, 986 (6th Cir. 2011) (rejecting a request for a teacher’s aide as
unreasonable).
In Belasco, the plaintiff employee, a school teacher with balance problems and
shortness of breath, asked for a part-time teacher’s aide and for disruptive students to be
transferred to a different classroom because she was afraid that she would be knocked down.
In upholding the granting of summary judgment to the defendant school district, the Court of
Appeals found that “both actions would shift performance of essential child supervision
functions onto another employee, either in Belasco’s classroom or another.

Any such

accommodations would be unreasonable, and the District was not obligated to fulfill those
requests.”88
85

(Id.)

86

(Id., p. 18.) Plaintiff notes that Defendant could “assign ‘on-call duty’ employees for an
extra $36 per day.” (Pl’s Resp. to SOF, ¶ 8, ECF No. 47.)
87
88

2015 WL 8538096 at *8 (6th Cir. Dec. 11, 2015).

Id. In its decision, the Court mentioned that a collective bargaining agreement with the
teachers’ union prohibited the employment of part-time aides without the consent of both the
prospective aide and the union, and the union did not agree to the school district’s employing
part-time aides for any reason, including accommodation of a disabled employee. Id. at *4.
However, the Court merely pointed this out as an additional reason as to why the plaintiff
employee’s proposed accommodation was unreasonable. Id. at *8 (“The unreasonableness of
Belasco’s proposed accommodation is further illustrated by the fact, uncontroverted by
Belasco, that hiring a part-time aide would have violated the District's collective bargaining
agreement with the teachers' union because the union was unwilling to provide its consent.”).
Cf. Gardull v. Perstorp Polyols, Inc., 382 F. Supp. 2d 960, 965 (N.D. Ohio 2005) (finding
21

Likewise, in the present case, “shifting” the performance of Plaintiff’s duties onto her
co-workers, either when she was absent or when she was on an unscheduled “flex” break and
“for as long as needed,” is per se unreasonable. Although time off, whether paid or unpaid,
can be a reasonable accommodation, an employer is not required to provide a disabled
employee with indefinite leave.89
Plaintiff attempts to rely on Bracey v. Michigan Bell Telephone Co.,90 in which the
plaintiff employee, who worked at a call center, suffered from irritable bowel syndrome. The
employee requested an accommodation of immediate access to a restroom and flexible break
times. The employer denied her request, based primarily on the assumption that her bathroom
break needs would cause her to miss too much work and be too unpredictable.91 The Bracey
Court denied the employer’s motion for summary judgment.92
Bracey is distinguishable from the present case because, in that case, the “impact of
unscheduled bathroom breaks could be reduced by locating [the employee’s] cubicle next to
the restroom, which [a supervisor] said could be done easily.”93 Moreover, rather than asking

that “although Gardull’s absences were unrelated to his disability, his excessive absenteeism
required his co-workers to perform his job. It therefore rendered him unqualified for the
position, for which regular attendance was a requirement.”)
89

Aston v. Tapco Int’l Corp., 2015 WL 7434652 at *4 (6th Cir. 2015) (determining that,
when an employee’s return date is not certain, an employer is not required to keep open a job
for an employee indefinitely as a reasonable accommodation). According to Plaintiff her
“[t]reatment was projected to last until August 15.” (Pl’s Resp., p. 7 (emphasis added), ECF
No. 47-1.) At the time of her termination, she had not given Defendant a set return date,
even if, after her termination, her treatment actually did end on August 15.
90

2015 WL 9434496 (E.D. Mich., Dec. 24, 2015).

91

Id. at *3-6.

92

Id. at *6.

93

Id.
22

for additional breaks, as Plaintiff has in this case, the Bracey employee proposed using her
regular breaks and lunch break at unscheduled times to accommodate her flare-ups.94
More akin to the present case is Davis v. George Washington Univ.,95 in which the
employee’s requested accommodation was to inform his supervisor “as soon as reasonably
possible that [he] was unable to report to work due to his illness.”96 In granting summary
judgment to the employer, the Court explained that “[a]lthough the ADA defines ‘reasonable
accommodation’ to include ‘part-time or modified work schedules,’ [the] requested
accommodation is too open-ended and is thus unreasonable as a matter of law.”97
Here, Plaintiff s request for a “flexible” work schedule permitting her to come in late
and to take breaks “as needed” and for an undetermined time period would remove an
essential function from her job, i.e., punctuality and attendance, and is, therefore, per se
unreasonable.98 Accordingly, Defendant is entitled to summary judgment.
Alternatively, Plaintiff’s excessive absenteeism prevented her from being “qualified”
for protection under the ADA.99 As explained in Wheeler v. Jackson Nat’l Life Ins. Co.,100
The Sixth Circuit has long held that “[a]n employee who cannot meet the
attendance requirements of the job at issue cannot be considered a qualified
94

Id.

95

26 F. Supp.3d 103 (D.C.C. 2014).

96

Id. at 115.

97

Id.

98

See Ford Motor Co., 782 F.3d at 761(removing an “essential function” from a position is
per se unreasonable) (citing Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir.
1998) and Sch. Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 287 n. 17 (1987)).

99

See Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 322 (6th Cir. 2012)
(collecting cases).

100

2016 WL 427796 (M.D. Tenn. Jan. 4, 2016).
23

individual protected by the ADA.” Gantt, 143 F.3d at 1047 (internal quotation
marks omitted); Melange v. City of Ctr. Line, 482 Fed.Appx. 81, 84 (6th Cir.
2012) (affirming Gantt and finding a custodian whose job required on-site
manual labor and who could not meet attendance requirements could not make
a prima facie case). Accordingly, excessive absenteeism can render an
individual unqualified under the ADA as a matter of law, except in the
exceptional case where an employee can effectively perform at home without a
substantial reduction in the quality of his performance. Smith v. Ameritech, 129
F.3d 857, 867 (6th Cir. 1997) (citing Vande Zande v. Wisconsin, 44 F.3d 538,
545 (7th Cir. 1995)); Brenneman v. MedCentral Health Sys., 366 F.3d 412,
419 (6th Cir. 2004).101
Under this analysis, because Plaintiff could not perform all the essential functions of her job,
she was not qualified for the job.
Failure to Engage in the Interactive Process Claim
The ADA’s regulations provide that, “[t]o determine the appropriate reasonable
accommodation [for a given employee,] it may be necessary for the [employer] to initiate an
informal, interactive process with the [employee].”102 The purpose of this process is to
“identify the precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.”103
Plaintiff contends that Defendant did not participate in good faith in the interactive
process. If the employer fails to participate in good faith, it faces liability under the ADA if a
reasonable accommodation would have been possible.104 Accordingly, even if the employer
101

Id. at *13 (footnote omitted). See also Larkins v. CIBA Vision Corp., 858 F. Supp. 1572,
1582 (N.D. Ga. 1994) (finding employee was not a qualified employee under the ADA
because she was required to sign in to telephones for 8.5 hours per day and she conceded that
taking telephone calls during that time was a major part of her job; therefore, the telephone
duties were an essential function of her position, and she was unable to complete them).

102

29 C.F.R. § 1630.2(o)(3).

103

Id.

104

Lafata v. Church of Christ Home for Aged, 325 Fed. App’x 416, 422 (6th Cir. 2009)
(quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000) (en banc), judgment
vacated on other grounds, 535 U.S. 391 (2002)).
24

“did not put sufficient effort into the ‘interactive process’ of finding an accommodation, 29
C.F.R. § 1630.2(o)(3), ‘that failure is actionable only if it prevents identification of an
appropriate accommodation for a qualified individual.’”105 As explained in Ford Motor Co.,
Courts thus need not consider this form of non-independent liability “if the
employee fails to present evidence sufficient to reach the jury on the question
of whether she was able to perform the essential functions of her job with an
accommodation.” It suffices here to hold that any failure by Ford does not
create liability because, as we just concluded, the EEOC did not produce such
evidence.106
Because Plaintiff has failed to show that she could perform the essential functions of
her job with her proposed accommodation, her interactive process claims fails even if
Defendant did not participate in the process in good faith.107
Retaliation/Discrimination Claim
Plaintiff contends that she was terminated from her position because of her disability
and in retaliation for asking for a reasonable accommodation under the ADA. Defendant has
moved for summary judgment on this claim on the ground that Plaintiff was terminated
because of her chronic absenteeism and her job accommodation requests were not a “but for”
cause of her termination.
105

Ford Motor Co., 782 F.3d at 766 (quoting Basden v. Prof’l Transp., Inc., 714 F.3d 1034,
1039 (7th Cir. 2013)).

106

Id. (citation omitted). See also Silva v. City of Hidalgo, Tex., 575 Fed. App’x 419, 424
(5th Cir. 2014) (“Accordingly, even if a genuine issue of material fact exists as to whether the
City participated in the interactive process in good faith, its dereliction cannot be said to have
led to a failure to reasonably accommodate Silva because there is no evidence that a
reasonable accommodation was feasible.”)
107

Defendant points out that the record shows that Plaintiff talked with the IDSC between
twenty and thirty times regarding her submission of medical information to support her
claims, and her physicians engaged in a months-long back and forth process exchanging
medical reports with the IDSC. (Pl’s Depo., pp. 60 - 62, ECF No. 37.) According to
Defendant, this evidence shows that it did, in fact, engage in the interactive process in good
faith. There is no need for the Court to decide this issue because Plaintiff failed to show that
she could perform the essential functions of her job with her proposed accommodation.
25

To establish a prima facie case of ADA retaliation,108 the plaintiff must show that: (1)
she was engaged in a protected activity; (2) the exercise of her civil rights was known to the
defendant; (3) the defendant subsequently took an adverse employment action; and (4) a
causal connection exists between the protected activity and the adverse employment action in this case Plaintiff’s termination.109 Once the plaintiff has established a prima facie case,
the defendant has the burden to “prove by a preponderance of the evidence that the
employment decision would have been the same absent the protected conduct.”110 If the
defendant does so, then the plaintiff must “show that the proffered reason was not its true
reason but merely a pretext for retaliation” by demonstrating that the defendant’s proffered
reason: (1) has no basis in fact, (2) did not actually motivate the defendant’s action, or (3) was
insufficient to motivate the defendant’s action.111
“[T]he showing of a good-faith request for reasonable accommodation” is a “protected
act” for purposes of an ADA retaliation claim.112 In the present case, for the purpose of
deciding this motion, the Court finds that there is no dispute that Defendant knew of
Plaintiff’s request for an accommodation under the ADA. Therefore, the question for the
Court is whether there are facts which, if believed by the trier of fact, show a causal
connection between Plaintiff’s request and her termination and, if so, whether there are facts
which, if believed by the trier of fact, show that Defendant’s proferred reason for the
108

See Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014) (When a plaintiff relies
on circumstantial evidence of retaliation, as in the present case, the burden-shifting
evidentiary framework of McDonnell Douglas applies.).

109

See Walborn v. Erie Cnty. Care Facility, 150 F.3d 584, 588–89 (6th Cir. 1998).

110

Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir. 2000).

111

Harris v. Metro. Gov’t of Nashville & Davidson Cnty., 594 F.3d 476, 486 (6th Cir. 2010).

112

Baker v. Windsor Republic Doors, 414 Fed. App’x 764, 776–77 & n. 8 (6th Cir. 2011).
26

termination was a pretext for discrimination.
“To establish a causal connection, a plaintiff must proffer evidence sufficient to raise
the inference that her protected activity was the likely reason for the adverse action.”113 Here,
Plaintiff has not pointed to any evidence in the record showing a causal connection between
her disability and request for an accommodation and her subsequent termination.
Plaintiff suggests that the proximity between her request for a reasonable
accommodation and her termination is evidence that her request was a factor in her
termination and, thus, establishes the requisite causation.114 Plaintiff points to her statement
to Defendant on June 27, 2014, that she could not return to work on June 30 as the beginning
point and July 3, the date of her termination, as the end point in determining whether there is
sufficient temporal proximity to show a causal connection. However, it is undisputed that
Plaintiff asked Defendant for a flexible schedule as a job accommodation as early as February
4, 2014, five months before her termination.115
Although extremely close temporal proximity permits an inference of a retaliatory
motive, evidence in addition to temporal proximity is required to permit the inference if close
temporal proximity is not present.116 This is not a case where the temporal proximity is so
close that it suffices by itself since Plaintiff’s request was made five months before her
termination.117 “The absence of close temporal proximity and the presence of an obviously

113

Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007).

114

(Pl’s Resp., pp. 25-26, ECF No. 47-1.)

115

(Id. at p. 5.)

116

See Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012) (“[T]he law in this circuit is
clear that temporal proximity cannot be the sole basis for finding pretext.”).

117

See, e.g., Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 401 (6th Cir. 2010) (finding
no temporal proximity when adverse decision was made eight months after defendants were
27

nonretaliatory basis for the defendants’ decision amount to insufficient evidence to permit an
inference of retaliatory motive.”118
However, even if she has shown the requisite causation, Defendant has articulated a
legitimate, nondiscriminatory reason for terminating Plaintiff, i.e., Plaintiff violated
Defendant’s absenteeism policy.119 Accordingly, the burden shifts to Plaintiff to demonstrate
that this reason is a pretext for unlawful discrimination.120
“A plaintiff may demonstrate pretext by showing that the proffered reason had no
basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered
reason was insufficient to motivate discharge.”121 “A reason cannot be proved to be ‘a pretext
for discrimination’ unless it is shown both that the reason was false, and that discrimination
was the real reason.”122 Plaintiff has not established pretext under any of these methods.
Plaintiff cannot show that Defendant’s proffered reason had no basis in fact, was not the real

served with another lawsuit by plaintiff); Deister v. AAA Auto Club of Michigan, 91 F. Supp.
3d 905, 921-22 (E.D. Mich. 2015), reconsideration denied, 2015 WL 1885576 (E.D. Mich.
Apr. 24, 2015), and aff'd sub nom. Deister v. Auto Club Ins. Ass’n, 2016 WL 2731606 (6th
Cir. May 11, 2016) (finding no temporal proximity when the plaintiff was not terminated until
almost five months after the Auto Club learned of his protected conduct); cf. Mickey v.
Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (finding temporal proximity was
evidence of causation when termination occurred on the same day the employer learned of
protected conduct).
118

Vereecke, 609 F.3d at 401.

119

This Court has previously held that an employee’s excessive absenteeism constitutes a
legitimate, nondiscriminatory reason for dismissal. See McNeil v. Sonoco Products Co., 2012
WL 1038767 at *11 (W.D. Tenn. Mar. 27, 2012), aff’d, 519 Fed. App’x 382 (6th Cir. 2013).
120

See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008).

121

Gantt, 143 F.3d at 1048–49.

122

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in original); Edmond
v. State of Tenn. Dept. of Probation & Parole, 386 Fed. App’x 507, 515 (6th Cir. 2010);
Hughes v. Gen. Motors Corp., 212 Fed. App’x 497, 502 (6th Cir. 2007).
28

reason, or was insufficient to explain Defendant’s action in terminating her.
It is undisputed that Defendant’s Attendance Guidelines warn that repeated
absenteeism may result in discipline up to and including termination. Under the Guidelines
“unscheduled time away” due to absences, late arrivals, or early departures is tracked using an
“unscheduled absence point system.” Any unscheduled time away from a scheduled shift in
excess of eight total points in a rolling twelve months of active employment, regardless of the
reason, is considered unacceptable attendance and results in termination.123
The record shows Plaintiff’s history of absenteeism. Plaintiff was off work on STD
from January through July 2013, worked a few days in August, and then resumed STD in
September 2013, which continued throughout October and part of November and December
2013.124 She returned to work on January 20, 2014. Prior to her return, she had been absent
from work since December 3, 2013.125

On January 30, 2014, and February 4, 2014,

Plaintiff’s managers discussed the attendance policy with her, and she expressed her
understanding of the policy. As part of her 2013 Performance Appraisal, she was evaluated
as not meeting Defendant’s expectations for “Attendance and Punctuality.”126 During the
period between March 11, 2014, and Plaintiff’s last day of active work on April 9, 2014,
Plaintiff missed several days of work. Plaintiff was not physically present at work from April
9 through the date of her termination on July 3, 2014.127

123

(Pl’s Resp. to SOF, ¶ 9, ECF No. 47.) See footnote 23, supra.

124

(Id. at ¶¶ 14 - 16.)

125

(Id. at ¶ 17.)

126

(Id. at ¶ 19.)

127

(Id. at ¶ 24.) Some of these absences were covered by STD. Because she had not
worked 1,250 hours in the twelve months preceding her absences, Plaintiff was unable to use
FMLA to cover her unscheduled absences.
29

At a minimum, Plaintiff’s unscheduled time away from work on February 15, 2014,
March 9, 12, 13, 16, 17, 20, 23, 24, and 25, 2014, and April 7, 8, and 9, 2014, resulted in
attendance points under the Attendance Guidelines. At that time, Defendant started the
process for obtaining approval of Plaintiff’s termination on the ground of accumulation of
excessive attendance points and job abandonment for failure to return to work as directed.
Plaintiff was sent a letter directing her to return to work by June 10, 2014, in order to remain
employed, but she did not return to work. As of June 11, 2014, Plaintiff had accumulated
twenty-six attendance points, which was in excess of the eight point threshold for termination
stated in the Attendance Policy.128 Defendant sent Plaintiff another letter setting her return to
work for June 30, 2014; Plaintiff responded by stating that she could not return to work on
June 30, 2014.129 Plaintiff was terminated on July 3, 2014.130
As evidence of Defendant’s pretext, Plaintiff points to what she terms Defendant’s
“unreasonable requirements for her to fully return to work, without schedule flexibility to
assist her known depression and current treatment program.”131 According to Plaintiff, she
would not have had to take off as often if Defendant had allowed her to have a flexible work
schedule.132 As discussed above, Plaintiff’s proposed flexible work schedule was not a
reasonable accommodation under the ADA. Plaintiff has cited no authority, and the Court
128

(Id. at ¶ 42.) See footnote 47, supra, rejecting Plaintiff’s argument that Defendant did not
calculate her attendance points correctly.

129

(McArthur Decl., ¶¶ 28 – 30, 33-34, ECF No. 38-1.)

130

Plaintiff’s successful appeals of STD for her absences beginning May 28, 2014, and
continuing through her termination date do not overcome the undisputed fact that as of June
30, 2014, she had exceeded the number of attendance points allowed under the Attendance
Guidelines. (Payne Decl., ¶¶ 22, 23, ECF No. 38-2.)

131

(Pl’s Resp, p. 24, ECF No. 47-1.)

132

(Id.)
30

knows of none, for the proposition that the denial of a proposed accommodation that is not
reasonable can be evidence of discrimination.
Also as evidence of pretext, Plaintiff contends that similarly situated employees were
treated differently than she was.133 Although Plaintiff cites to the attendance records of some
of her co-workers in her response to Defendant’s statement of facts,134 these documents have
not been authenticated.
Rule 803(6) of the Federal Rules of Evidence permits records of regularly conducted
business activity to be admitted into evidence if the records meet certain requirements: (1)
they were “created in the course of a regularly conducted business activity,” (2) they were
“kept in the regular course of that business,” (3) they resulted from a “regular practice of the
business” to create such documents, and (4) they were “created by a person with knowledge
of the transaction or from information transmitted by a person with knowledge.”135 The
fulfillment of these requirements must be “shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a
statute permitting certification.”136 Plaintiff has not fulfilled these requirements.
While submissions “by a party opposing a motion for summary judgment need not
themselves be in a form that is admissible at trial,” that party must “lay[ ] out enough
evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact

133

(Id. at p. 23.)

134

(Pl’s Resp. to SOF, ¶ 10 (referencing Pl’s Exbs. H – 0, ECF No. 48), ECF No. 47.)

135

United States v. Collins, 799 F.3d 554, 582-83 (6th Cir.), cert. denied, 136 S. Ct. 601
(2015); Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1071–72
(6th Cir. 2014) (“A custodian or otherwise qualified witness must attest that the proffered
document meets these conditions.”); Fed. R. Evid. 803(6).
136

Fed. R. Evid. 803(6)(D).
31

exists.”137 Consequently, “hearsay evidence not subject to any exception ‘must be
disregarded,’” and “unauthenticated documents do not suffice” to defeat summary
judgment.138
When a document is produced in discovery, there may be sufficient circumstantial
evidence to support its authenticity.139 In the present case, it is not clear if the attendance
records were produced by Defendant to Plaintiff during discovery, but even if they were and
even if circumstantial evidence supports their authenticity, the documents do not establish
Plaintiff’s contention that similarly situation co-workers were treated differently.
Under this method of establishing pretext, plaintiff must demonstrate that other
employees outside of her protected class were not fired, even though they were
similarly situated and engaged in substantially identical conduct to that which
the employer contends motivated its decision. Smith [v. Leggett Wire Co., 220
F.3d 752, 762 (6th Cir. 2000)]. To be similarly situated, “the individuals with
whom the plaintiff seeks to compare his/her treatment must have dealt with the
same supervisor, have been subject to the same standards and have engaged in
the same conduct without such differentiating or mitigating circumstances that
would distinguish their conduct or the employer's treatment of them for it.”
Ercegovich [v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir.
1998)]. Although exact correlation is not required, “the plaintiff and the
employee with whom the plaintiff seeks to compare himself or herself must be
similar in all of the relevant aspects.” Smith, 220 F.3d at 762 (quotation marks
137

Reed v. Procter & Gamble Mfg. Co., 556 Fed. App’x 421, 427 (6th Cir. 2014) (quoting
Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009)); Fed. R. Civ. P. 56(c)(1)(A) &
(4). See also Williamson v. Scioto Twp. Trustees, 2014 WL 4388266 at *7 (S.D. Ohio Sept. 5,
2014) (finding that neither of the documents on which the plaintiff relied was authenticated
because he provided no affidavit or deposition testimony from any individual with personal
knowledge addressing the existence or requirements of such a policy and declining to
consider these documents in opposition to the motion for summary judgment).
138

Reed, 556 Fed. App’x at 427 (quoting Alexander, 567 F.3d at 558). C.f., Auto Indus.
Supplier Employee Stock Ownership Plan v. Ford Motor Co., 435 Fed. App’x 430, 458 (6th
Cir. 2011) (rejecting the plaintiff’s argument that it “would provide more witnesses at trial to
present foundational testimony. As the district court pointed out, this statement shows that
SNAPP implicitly conceded that it had failed to provide an adequate foundation for the
Frazee report.”)
139

See Gregg v. Ohio Dep’t of Youth Servs., 661 F. Supp. 2d 842, 853 (S.D. Ohio 2009).
32

omitted).140
Although Plaintiff has attempted to explain and interpret the attendance records of her fellow
employees,141 she has provided little or no context for the records, and her speculation as to
what the records might mean is not sufficient to show pretext.
As for Plaintiff’s claim that she was terminated because of her disability in violation
of the ADA, at the prima facie stage, the plaintiff’s burden is to show that (1) she is disabled
but (2) otherwise qualified for the position, with or without reasonable accommodation; (3)
she suffered an adverse employment decision; (4) the employer knew or had reason to know
of the plaintiff’s disability; and (5) either the position remained open; she was replaced by a
non-disabled person; or similarly-situated non-disabled employees were treated more
favorably.142 In the present case, as explained above, Plaintiff was not qualified for her
position because she could not perform an essential function, i.e., attendance and punctuality.
Therefore, she has not established a prima facie case of discrimination. However, as with her
retaliation claim, even if she has established a prima facie case, Defendant has presented
excessive absenteeism and job abandonment as legitimate, non-discriminatory reasons for her
termination, and Plaintiff cannot show that the reasons were pretextual.
“When an employer reasonably and honestly relies on particularized facts in making
an employment decision, it is entitled to summary judgment on pretext even if its conclusion
is later shown to be ‘mistaken, foolish, trivial, or baseless.’”143 The “key inquiry ... is
140

Gunn v. Senior Servs. of N. Kentucky, 632 Fed. App’x 839, 848 (6th Cir. 2015).

141

(Pl’s Resp. to SOF, ¶ 10, ECF No. 47.)

142

Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011); Stanciel v. Donahoe, 570 Fed.
App’x 578, 581 (6th Cir. 2014).

143

Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th Cir. 2012) (quoting Chen v. Dow
Chem. Co., 580 F.3d 394, 401 (6th Cir. 2009)).
33

‘whether the employer made a reasonably informed and considered decision before taking’
the complained-of action.”144 Although the employer must point to particularized facts on
which it reasonably relied, the Sixth Circuit does “not require that the decisional process used
by the employer be optimal or that it left no stone unturned.”145
Here, Defendant has pointed to particularized facts on which it could reasonably rely
to terminate Plaintiff. Even if Plaintiff only meant to discuss her request for a reasonable
accommodation and not refuse to return to work on June 30, Defendant reasonably relied on
her statement that she could not return to her job when it terminated her. Plaintiff has not
pointed to any non-speculative evidence from which a jury could reasonably doubt
Defendant’s explanation. The facts are undisputed that Plaintiff’s job was terminated for her
having excessive attendance points in violation of Defendant’s Attendance Guidelines and for
failure to return to work as directed.

Accordingly, Defendant is entitled to summary

judgment on Plaintiff’s retaliation and discrimination claims.
Because Defendant has presented undisputed material facts showing that it is entitled
to judgment as a matter of law on all of Plaintiff’s claims, Defendant’s motion for summary
judgment is GRANTED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: June 6, 2016.

144

Id. (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598–99 (6th Cir.
2007)).
145

Id.; Michael, 496 F.3d at 599.
34