ALETA A. TRAUGER, United States District Judge.
Pending before the court are three Rule 56 motions. The defendant Jackson National Life Insurance Co. ("JNL") has filed a Motion for Summary Judgment ("JNL Motion") seeking dismissal of all claims brought by the plaintiff Josh Wheeler ("Wheeler") (Docket No. 32), to which Wheeler has filed a Response in opposition (Docket No. 46), and JNL has filed a Reply (Docket No. 59). Wheeler has also filed a Motion for Summary Judgment seeking judgment on all claims (Docket No. 37), to which JNL has filed a Response in opposition (Docket No. 53), and Wheeler has filed a Reply (Docket No. 63). Finally, JNL has filed a Supplemental Motion for Summary Judgment (Docket No. 71), to which Wheeler has filed a Response in opposition (Docket No. 76), and JNL has filed a Reply (Docket No. 83). For the following reasons, Wheeler's motion will be denied and JNL's motions will be granted.
This case involves claims by Wheeler against his former employer, JNL, for discrimination and retaliation based on disability. Wheeler brings this action for equitable relief and damages against JNL under (1) the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), as amended by the ADA Amendments Act of 2008; (2) the Tennessee Disability Act, Tenn. Code Ann. 8-50-103 ("TDA"); (3) Tennessee common law; (4) the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304 ("TPPA"); and (5) the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., ("FMLA").
Wheeler is a resident of Tennessee. JNL is a Delaware corporation with a principal place of business in Denver, Colorado and a corporate headquarters in Lansing, Michigan. JNL maintains an office in Franklin, Tennessee. JNL, through its subsidiaries, markets and wholesales a variety of annuities to independent and regional broker-dealers, "wirehouses," independent agents and financial institutions (collectively, JNL's "customers") through its External and Internal Wholesalers.
External Wholesalers meet face-to-face with JNL's customers. JNL pairs an External Wholesaler with an Internal Wholesaler
Wheeler was initially hired as an IW in JNL's Denver, Colorado office on April 7, 2008. JNL annually evaluated Wheeler as "Meets Expectations" or "Exceeds Expectations" each year that he worked as an IW. Wheeler took FMLA leave while employed in Denver for continuous leave related to bipolar disorder from August 11, 2009 through August 21, 2009 and for narcolepsy from February 10, 2010 through April 23, 2010. JNL recognized and regarded Wheeler as having a disability and health impairments. Wheeler's conditions include narcolepsy, bipolar disorder, anxiety, emotional deregulation, and depression. Wheeler's conditions are episodic in nature. As discussed infra, Wheeler's doctors have opined that episodes of some of Wheeler's conditions prevent him from working during an episode. Wheeler's doctors have not opined that he is incapable of work during time between episodic flare-ups.
At Wheeler's request, JNL transferred Wheeler to its Franklin, Tennessee office on May 7, 2011. Shortly after his transfer to Franklin, Wheeler provided JNL with FMLA Certification forms ("FMLA Certification") that were completed by his psychiatrist, Dr. Steven Nyquist ("Dr. Nyquist"), and his psychologist, Dr. Mona Bennett ("Dr. Bennett"), both of whom were treating Wheeler for bipolar disorder, that stated that Wheeler would need leave from work to attend doctor's appointments for his bipolar disorder. On February 3, 2012, Wheeler provided JNL with an FMLA Certification from Dr. Bennett that indicated that Wheeler may need intermittent leave one to three days per month for flare-ups for his bipolar disorder in addition to his doctor's appointments.
On March 9, 2012, Wheeler was hospitalized for his bipolar disorder, and his physicians indicated that he would require continuous leave through April 9, 2012. On April 9, 2012, Dr. Bennett urged JNL to consider offering Wheeler "a position that would provide reasonable balance and pacing of schedule to promote return of healthy emotional regulation" and stated that Wheeler would be unable to return to work until April 23, 2012. Wheeler had exhausted his FMLA leave as of April 5, 2012, and JNL extended Wheeler's unpaid general leave of absence through April 22, 2012.
Thereafter, in response to Wheeler's unpredictable attendance as an IW, JNL created a Floating Internal Wholesaler ("FIW") position that permitted Wheeler
According to Wheeler, his health-related absences had little to no impact on the production of the business unit in which he worked as an FIW, and Wheeler's supervisors did not need to re-assign job tasks, hire temporary workers, or burden other associates with Wheeler's work when he was not present. JNL avers, however, that, while Wheeler's absences had little to no impact on the production of the External Wholesalers, since Wheeler was not assigned to an External Wholesaler, Wheeler's absences caused the Queue to
On September 14, 2012, Wheeler was hospitalized for bipolar disorder. As of September 14, 2012, Wheeler had exhausted his rolling twelve-week allotment of FMLA leave. JNL agreed to accommodate Wheeler with an unpaid general leave of absence from September 14, 2012 through October 26, 2012, which was the date his rolling twelve-week FMLA leave balance would replenish. JNL granted Wheeler FMLA leave from October 26, 2012 until he was able to return to work on November 26, 2012. In total, therefore, JNL granted Wheeler two general leaves of absence in 2012.
Wheeler received a performance evaluation of "Meets Expectations" for 2012. This covered part of the time he worked as an IW and part of the time he worked as an FIW. Wheeler did not subsequently receive a performance evaluation for any part of 2013.
After missing five days of work on an intermittent basis in early 2013, Wheeler requested intermittent FMLA leave. On March 21, 2013, JNL provided to Wheeler a Notice of Eligibility and Rights & Responsibilities under the FMLA ("FMLA Eligibility Notice").
On April 24, 2013, Anthony left employment with JNL. On May 17, 2013, Matt Cross ("Cross") became Wheeler's direct supervisor. Also in May 2013, JNL hired Laural Gooden ("Gooden") as a new Senior HR Generalist to replace Robinson, who had been Wheeler's primary HR contact prior to her resignation in late March 2013.
Wheeler avers that JNL's "high-level management approved [him] for remote-work access privileges as an accommodation. Although remote-work privileges are not typically given to IWs or [F]IWs, []Wheeler was approved to work from home as needed." (RWSUF No. 28.) However, Wheeler has not testified as to who gave him such permission. Douglas has testified that Wheeler did not receive permission to work from home, other than email access, because no IW is allowed to work from home. (Docket No. 55-3 at pp. 155-158.) More specifically, Douglas stated that Wheeler would not have been given such authority because Wheeler's job required him to be in the building to perform the essential functions of his job. (Id.) Cross testified likewise, stating that he was not aware of anyone's granting Wheeler remote access so he could work from home; that he did not give him permission; and that Wheeler could not perform the essential functions of his job remotely because he could not make recorded calls. (Docket No. 35-2 at pp. 13-14.) Finally, Anthony testified that he did not give Wheeler permission to work remotely and that FIW duties cannot be performed remotely. (Docket No. 47-4 at pp. 11-12.) In short, it is undisputed that telephone Queue-related duties cannot be performed remotely, because an employee cannot log into the telephone system remotely. Wheeler only claims — and JNL admits — that he had remote email access.
In June of 2013, Cross raised concerns with Gooden regarding his responsibilities with respect to managing Wheeler's attendance. According to JNL, Cross mentioned that Wheeler had been absent from work during May and June without calling in and that Cross was not sure how to handle the absences. Gooden and Douglas began to review Wheeler's attendance. It is undisputed that (1) Gooden and Douglas reviewed a report regarding when/if Wheeler scanned his identification badge to enter the office or building stairwell, which was required for entry; (2) Gooden and Douglas reviewed reports indicating whether Wheeler had logged into the phone system and whether he had logged into the Queue as available to take calls; and (3) Douglas also reviewed Wheeler's Microsoft Outlook emails to further review whether he had performed any work while at the office. It is also undisputed that the information collected by Gooden and Douglas demonstrated that, between April 24, 2013 and July 12, 2013 (a 58 working-day period), Wheeler had not used his identification badge and had not logged into the phone system as being physically
Wheeler states that he was working during May, June, and July of 2013. Specifically, Wheeler asserts that, on most of those 34 days, he was working from home with the full knowledge and acquiescence of JNL. Wheeler asserts certain facts: (1) he was given high-level remote access by JNL decision makers so that he could work from home; (2) he told Douglas that he was working during this period, (3) his wife Mara Wheeler ("Ms. Wheeler") works from home and observed Wheeler working remotely, (4) July 24, 2013 remote work records (i.e., Smart Card Reports) show logins on the following dates: May 7, 2013; May 9, 2013; May 10, 2013; May 14, 2013; May 15, 2013; May 20, 2013; May 21, 2013; May 22, 2013; May 23, 2013; May 24, 2013; June 13, 2013; June 27, 2013; June 28, 2013; July 1, 2013; July 9, 2013; July 11, 2013; July 12, 2013; and July 14, 2013; and (5) July 12, 2013 TKS system records provided by Matt Cross reflect that Wheeler did not make a single request for FMLA time off to him during the months of May or June 2013.
JNL had informed Wheeler that, if he was going to be absent from work for FMLA purposes, he was responsible for entering that time off into JNL's timekeeping system and coding the time as FMLA or paid time off. Wheeler did not request FMLA leave or paid time off in connection with any days in May or June of 2013. The information reviewed by Gooden and Douglas revealed that, of the twenty days Wheeler had reported to work in May and June of 2013, he had logged into the Queue as being available to take calls on only two of those days.
Douglas met with Wheeler on July 15, 2013. JNL maintains the purpose of the meeting was to discuss Wheeler's absences; Wheeler claims its was to discuss his FMLA leave and complaints that he had regarding Douglas and Cross. No formal record of what transpired at the meeting is contained in the evidence before the court.
On July 16, 2013, Douglas delivered to Wheeler another FMLA Eligibility Notice ("July 16 Eligibility Notice"). The July 16 Eligibility Notice stated that Wheeler was a statutorily "eligible employee" for FMLA leave as of July 16, 2013, but it did not state any amount of FMLA leave that Wheeler had as of July 16, 2013.
JNL's complaint procedure is reflected in its "Open-Door Policy." Employees satisfy the Open-Door Policy by speaking out
Wheeler has testified that Cross made several comments that Wheeler believed were meant to single him out and treat him differently, including: "what's wrong?," "what's wrong with you?," "why can't you be here?," and "what do you have going on with you?" (Docket No. 35-1 at p. 41.) Wheeler further testified that Cross's questions "bothered" him on one occasion when Cross asked "what is wrong with you" in front of other employees. (Id.) Wheeler brought these comments to the attention of JNL Human Resources Representative Dana Rapier. Wheeler also claims Cross spoke to him in a "hostile" tone of voice and laughed about his condition in front of others. (Id.) Wheeler also avers that Douglas once commented to him — "if you owned a company, would you hire somebody like you [and with your conditions] as an employee?" (Id. at p. 245.)
On July 16, 2013, again after the July 15 meeting with Douglas, Wheeler emailed Human Resources employee Sheri Thuma about an FMLA "conundrum" and raising concerns about accountability and process regarding absences at JNL in the past versus the present. The email does not contain specific allegations about any individual. Wheeler stated that his "main concern is to move forward and have a consistent methodology again." (Id. at p. 262.) On July 17, 2013, Mrs. Wheeler sent an email complaint regarding alleged poor management and communication at JNL since Cross became Wheeler's supervisor and Douglas became the primary human resources contact.
By July 25, 2013, JNL had completed its "reconciliation" of Wheeler's available FMLA time vis a vis his absences in May, June and July of 2013. JNL used various evidence to complete this process, including
On the Smart Card Activity Reports provided to Douglas, a screen shot attachment shows remote logins on the following dates: (1) May 7, 2013; (2) May 9, 2013; (3) May 10, 2013; (4) May 14, 2013; (5) May 15, 2013; (6) May 20, 2013; (7) May 21, 2013; (8) May 22, 2013; (9) May 23, 2013; (10) May 24, 2013; (11) June 13, 2013; (12) June 27, 2013; (13) June 28, 2013; (14) July 1, 2013; (15) July 9, 2013; (16) July 11, 2013; (17) July 12, 2013; and (18) July 14, 2013. Wheeler told Douglas that he was working in May, June and July of 2013. As mentioned, Mrs. Wheeler works from home. At her deposition, Mrs. Wheeler testified that "I think that [Wheeler] wasn't completely impaired being in the bed the whole time, but he was home and dealing with everything with his condition, but he was able to work sometime from home." (Docket No. 47-5 at p. 96.) When asked if it was her "observation" that Wheeler was working at home, Mrs. Wheeler later testified that it was, rather, "her understanding." that on the days that Wheeler was home he worked remotely. (Id. at pp. 109-10).
According to JNL, Douglas's reconciliation concluded that Wheeler had exhausted his available intermittent FMLA leave as of July 5, 2013. This was communicated to Wheeler by letter on July 25, 2013. The letter stated that, as of July 5, 2013, Wheeler's twelve-week allotment of leave under the FMLA had been exhausted based on previous occurrences. On behalf of JNL, Douglas decided to cover all of Plaintiff's absences through July 5, 2013 with the 240 hours of FMLA time that had been available to Plaintiff prior to May 2013. Wheeler disputes the accuracy of JNL's reconciliation, claiming that it was done after he was notified of his FMLA eligibility on June 19, 2013 and July 16, 2013 and, thus, he had not actually exhausted his FMLA leave as of July 5, 2013.
Wheeler regularly physically showed up to work as an FIW between mid-July and August 5, 2013, despite the fact that he had still requested intermittent leave on an ongoing basis. On July 30, 2013, Wheeler
On August 5, 2013, Douglas and Gooden met with Wheeler and Mrs. Wheeler and shared the results of JNL's reconciliation of Wheeler's attendance with respect to his exhaustion of available FMLA leave and paid time off. Douglas provided Wheeler with a color-coded spreadsheet reflecting the numerous dates that Douglas had classified as leave taken pursuant to the FMLA. In addition to reviewing Wheeler's attendance, Douglas's notes from the meeting reflect that she informed Wheeler that "[w]hen he is at work he is not performing the essential functions of his position because he is not taking calls and not logging in [to the Queue]."
Wheeler asked Douglas to explain what would be the grounds for termination. Douglas testified that the reason for
Between August 5, 2013 and August 9, 2013, Wheeler requested FMLA paperwork from JNL, but JNL did not provide it. JNL explained to Wheeler that it was not providing the FMLA paperwork because Wheeler's FMLA leave was expired. JNL provided Wheeler with paperwork for a general leave of absence. On August 8, 2013, Wheeler sent McAdory an email regarding his prior complaints, inquiring as to why: (1) Douglas did not let him file a formal written complaint against Cross for making discriminatory comments and (2) he did not get to file a formal complaint against Douglas for making discriminatory comments. Douglas sent Cross a message communicating that: (1) she was turning off Wheeler's security badge; (2) human resources would "review all medical documentation and make a decision whether to ant [sic] him leave"; and stating (3) "[w]e want to make sure he isn't getting paid for time away from work." (Docket No. 41-3 at p. 292.) Douglas specifically advised Cross to enter unpaid time into the TKS System to ensure that Wheeler was not paid for time away from work.
JNL sought additional medical opinions from Wheeler's treating medical professionals to determine if the accommodation of a general leave of absence would render him capable of performing the essential functions of his job in the future. Dr. Milstone opined that Wheeler's narcolepsy was incurable, that Wheeler would suffer episodic flare-ups of unpredictable frequency and that the flare-ups could render Wheeler incapable of performing his JNL job for up to seven days at a time.
JNL then determined that a general leave of absence was not an appropriate accommodation for Wheeler's medical conditions, as it was unlikely to lead to Wheeler's being able to regularly and predictably perform the aspect of his job that involved being onsite and logged into the Queue to take calls.
On that date, JNL delivered to Wheeler an email with two attachments: (1) his termination letter and (2) "a copy of the doctors' reports that provide [JNL] the medical information upon which it relies for its determination." (Docket No. 41-3 at pp. 322-23.) The termination letter acknowledges that its decision was based on the medical information provided by Dr. Bennett and Dr. Milstone. (Id.). JNL wrote to Wheeler that, "as you can see from the reports, both doctors opine that the medical conditions that apparently cause your inability are lifelong."
The FIW position has a corrective action disciplinary process, and Douglas testified that, where such a process exists at JNL, it is generally followed.
Wheeler initiated this action on April 4, 2014 (Docket No. 1) and filed an Amended Complaint on May 5, 2014 (Docket No. 6). On May 28, 2014, JNL answered the Amended Complaint. (Docket No. 9.) The Amended Complaint included placeholder claims for Wheeler's ADA claims, which remained pending for administrative exhaustion before the Equal Employment Opportunity Commission. On September 16, 2015, Wheeler filed a Motion to Amend the Complaint Upon Administrative Exhaustion to formally include his ADA claims. (Docket No. 25.) After extensive briefing, the court granted this motion (Docket No. 68), and the Second Amended Complaint was formally docketed on December 2, 2015 (Docket No. 69).
While the Motion to Amend was pending, the parties filed their cross-motions for summary judgment. First, on October 15, 2015, JNL filed its Motion for Summary Judgment. (Docket No. 32.) JNL did not, however, move for summary judgment on the placeholder ADA claim. (Id.) On October 9, 2014, Wheeler filed his Response. (Docket No. 46.) On October 19, 2014, JNL filed a Reply. (Docket No. 59.) Second, on October 16, 2014, Wheeler filed his Motion for Summary Judgment. (Docket No. 37.) On October 10, 2014, JNL filed its Response. (Docket No. 53.) On October 19, 2014, Wheeler filed a Reply. (Docket No. 63.) Wheeler moved for summary judgment on all claims, including the placeholder ADA claims.
Upon the docketing of the Second Amended Complaint in December 2015, the court allowed JNL to supplement its Motion for Summary Judgment concerning the ADA claims. Instead of doing so, on December 7, 2015, JNL filed a Supplemental Motion for Summary Judgment concerning those claims.
Rule 56 requires the court to grant a motion for summary judgment if "the movant
At this stage, "`the judge's function is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). But "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient," and the party's proof must be more than "merely colorable." Anderson, 477 U.S. 242, at 252, 106 S.Ct. 2505. An issue of fact is "genuine" only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
"On cross-motions for summary judgment, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Dixon v. Univ. of Toledo, 702 F.3d 269, 273 (6th Cir.2012) (internal quotation marks and brackets omitted).
Wheeler alleges that JNL discriminated against him and terminated him, in violation of the ADA and the TDA, because he was disabled. The ADA and TDA protect disabled employees from discriminatory treatment. See 42 U.S.C. § 12112(a). Under the ADA, no covered entity shall discriminate against a qualified individual with a disability 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. Id. The TDA prohibits private employers from discriminating against employees "based solely on any physical, mental, or visual handicap of the applicant, unless such handicap to some degree prevents the applicant from performing the duties required by the employment or impairs the performance of the work involved." Tenn. Code Ann. § 8-50-103(a). A claim brought under the TDA is analyzed under the same principles as those utilized for the ADA. Cardenas-Meade v. Pfizer, Inc., 510 Fed.Appx. 367, 369 n. 2 (6th Cir.2013) (citing Sasser v. Quebecor Printing (USA) Corp., 159 S.W.3d 579, 584 (Tenn. Ct. App. 2004)); Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 553 n. 5 (6th Cir.2008) ("Both federal and Tennessee disability discrimination actions require the same analysis.") (citation omitted).
A plaintiff may prove employment discrimination under the ADA based upon circumstantial evidence using the prima facie case and burden shifting method articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in
JNL does not dispute that Wheeler had a disability and that Wheeler suffered an adverse employment action. However, JNL argues that Wheeler has not established that he was qualified, with or without an accommodation, to perform the essential functions of his job because Wheeler's physicians informed JNL that Wheeler could not regularly and predictably attend work and would not be able to do so in the foreseeable future.
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 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).
In 2014, a panel of the Sixth Circuit reiterated that, "for many positions, regular attendance at the workplace is undoubtedly essential." E.E.O.C. v. Ford Motor Co., 752 F.3d 634 (6th Cir.2014). However, the panel then proceeded to distinguish between cases in which, on the one hand, presence at the physical worksite of the employer is critical to the nature of the employee's work, and, on the other hand, cases in which an employee can perform his or her job duties anywhere due to modern technological remote work arrangements. Id. at 641. The
This court must give consideration to JNL's judgment as to what functions of the FIW job are essential, including the written job description. See 42 U.S.C. § 12111(8). Moreover, a job function may be considered essential if the reason the position exists is to perform that particular function. 29 C.F.R. § 1630.2(n)(2). In other words, "essential functions" refer to job duties that are "fundamental" rather than "marginal." 29 C.F.R. § 1630.2(n)(1). In addition, a job task is understood by the courts to be essential if its removal would "fundamentally alter" the nature of the position. Ford Motor Co., 782 F.3d at 762.
Here, the record undisputedly reflects that JNL requires that IWs and FIWs regularly and predictably attend work. The record also undisputedly reflects that, while attending work, all FIWs must be
(Docket No. 35-1 at p. 28.)
As such, despite whatever protest he may now make, Wheeler has acknowledged that these on-site duties were his primary tasks, that they could not be performed remotely, and that he was advised that he would be held to the same standards as other IWs and FIWs when working. Necessarily, therefore, the removal of attendance at the JNL worksite and logging into the FINRA-monitored Queue would fundamentally alter the nature of the FIW position because, if that were to occur, Wheeler would not be able to perform any of his primary duties. Accordingly, regular on-site attendance and taking calls in the Queue were clearly essential functions of Wheeler's FIW position.
Wheeler contends that, because JNL considered his unpredictable attendance when creating the FIW job for him, regular job attendance was not included as an essential function of the FIW position. However, Wheeler has no factual support for this assertion, no matter how many times he repeats it. The record reflects that JNL removed Wheeler from the IW position in order to avoid harm to the External Wholesalers caused by Wheeler's unpredictable attendance and also in response to Wheeler's physician's recommendation that a different job with less stress would assist Wheeler in improving his health and performing satisfactorily. (See Docket No. 35-2 at pp. 8-9; Docket No. 55-3 at p. 25.). Wheeler has simply offered no record evidence to support the assertion that JNL created the FIW position based on the premise that his regular attendance would not be of importance.
The court finds that the factual circumstances of this case are analogous to Ford Motor Co. and the wealth of ADA caselaw in this area. On the whole, the record reflects that Wheeler was not able to fulfill the essential functions of his job — i.e., the requirements of consistent on-site attendance and taking calls while logged into the Queue — sufficient to be considered a qualified employee under the ADA. Wheeler undisputedly did not comply with the worksite attendance requirements for the majority of May and June of 2013. Wheeler's claims (and Mrs. Wheeler's testimony) that he "worked from home" during most of these months are of no moment, as it was clearly impossible for Wheeler to fulfill the essential telephone Queue duty requirements from home. In mid-July 2013, Wheeler's physicians updated JNL on Wheeler's conditions, indicating that Wheeler should be anticipated to routinely require time off from work on an unpredictable basis as much as every other week and one day every week. Wheeler then missed more time in July and August of 2013 after having exhausted his FMLA leave. In August 2013, Wheeler's physicians provided additional opinions that reflected
Wheeler's personal view that other tangential or "remote work" duties are essential to the FIW position is belied by the record and does not create a dispute of material fact that preserves a discrimination claim. There is a good reason courts "are reluctant to allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience." Mason, 357 F.3d at 1122. This is because any employee could provide a court with "self-serving testimony" that his job was amenable to working remotely. Id. Wheeler's subjective opinion lacks support in the record. Wheeler offers no evidence that anyone specific ever gave him remote work privileges for a specific reason (aside from the bare existence of the ability to send email), and the universal testimony of the relevant JNL personnel and evidence of record refutes what Wheeler claims: specifically, that to perform the essential functions of his job, Wheeler could not be at home and had to be logged into the Queue at the JNL worksite.
As he must, Wheeler concedes that his telephone Queue duties could not be performed remotely. Rather, Wheeler claims that he performed a "multitude" of other job functions from home. However, the court finds no evidentiary support for this claim. Wheeler has acknowledged that his "sole responsibilities [were] 1) helping out in the [Q]ueue at all times, and 2) helping out by taking inbound calls in specific territories if IW's were out of the office." (Docket No. 35-1 at pp. 46-47.) While Wheeler may have had other tangential tasks aside from answering the phone (including, naturally, tasks to fill time when the phones were not busy), Wheeler has not adduced record evidence (other than Wheeler's own opinion) that JNL ever permitted Wheeler to disregard his essential duties of being logged into the Queue. Finally, the record reflects that the remote access Wheeler had allowed him only to send and receive emails; there can be little question that doing so hardly meets the written job description of the FIW position.
Put simply, what matters for this analysis is that it was essential to Wheeler's FIW position to be in physical attendance
Wheeler also appears to argue that, by repeatedly not taking action against him for prior rampant absenteeism, JNL should be precluded from being able to do so in 2013 (or, stated differently, should be required to continue to extend leave as an accommodation in 2013). This is wrong for three reasons. First, it ignores the fact that the supplemental prognoses of Drs. Bennett and Milstone indicated deteriorating conditions that would preclude Wheeler's predictably regular attendance at work in 2013 and beyond. JNL is certainly able to act on this new information. Second, the argument does not withstand logic: taken to its conclusion, a generous employer who accommodates an employee with leave at some point can never subsequently enforce the requirement that regular and predictable attendance is an essential function of that employee's position. Third, it ignores the fact that the law does not require an employer to wait for an indefinite (or unlimited) period of time for an accommodation to achieve its intended effect. Gantt, 143 F.3d at 1047; see also Waggoner v. Olin Corp., 169 F.3d 481, 484 (7th Cir.1999) ("Rather than attempting to show that []he is a qualified individual [], [Plaintiff] seems to want to turn the ADA on its head. It is as if []he thinks that rather than ensuring that []he be allowed to work, the ADA requires [Defendant] to provide [him] with a job but not require that []he regularly perform it... The [ADA] does not go so far.") In short, a lack of prior discipline of Wheeler by JNL for absenteeism does not establish that regular and predictable attendance was not required for the FIW position. Wheeler's argument rests on the faulty premise that an employer who, for some period of time, does not harshly discipline an employee for absences is somehow forever bound to maintain a "hands-off approach" with that employee. This is not the law.
Because Wheeler was not a qualified individual under the ADA as a result of his attendance problems, to advance an ADA claim Wheeler must be able to show that he would be "otherwise qualified" with an accommodation. In support of this argument, Wheeler argues that he would have been otherwise qualified had JNL simply continued to grant him indefinite, intermittent leave — in essence, the same accommodation that JNL had extended to Wheeler in the past. However, this ignores the fact that Drs. Milstone and Bennett had provided opinions that Wheeler's ability to work regularly and predictably would look no better (if not worse) in the future than in the past. The ADA does not contemplate requiring JNL to indefinitely offer Wheeler an unsuccessful accommodation in the face of a worsening situation. See, e.g., Corder v. Lucent Techs., 162 F.3d 924, 928 (7th Cir.1998) (holding that the employee was not a qualified individual entitled to the protection of the ADA where she made a continued request for an unpredictable amount of leave time, and there was nothing in the record to suggest that the future would look any different from the past and observing that a "request for an `unpredictable' amount of leave time as an ongoing
Wheeler wishes to disregard JNL's business judgment as to the essential functions of his job and recreate an FIW position of his liking — namely, one that did not require regular or predictable attendance and participation in the Queue. This is not, however, supported by the record before the court. In Ford Motor Co. the Sixth Circuit stressed that "the inquiry into essential functions is not intended to second guess an employer's business judgment with regard to [employee] production standards." 782 F.3d at 762 (citing 29 C.F.R. § 1630(n)). "Nor is it meant `to require employers to lower such standards.'" Id. Based on the totality of the evidence discussed herein, JNL is entitled to summary judgment on Wheeler's ADA and TDA discrimination claims.
As an alternative claim, Wheeler contends not that attendance in general is an essential function of the FIW position, but, rather, that his proposed variation to the attendance policy-ongoing, intermittent leave at his discretion — constituted a reasonable accommodation that JNL failed to provide. JNL argues in response that it was not obligated to provide Wheeler with the accommodation of ongoing, intermittent leave at Wheeler's discretion, given the job description of the FIW position.
Discrimination under the ADA includes an employer's failure to make "reasonable accommodations
This case is directly analogous to Samper, for example, which the Sixth Circuit has cited with approval. Samper involved a hospital employee who suffered from fibromyalgia, a condition that limited her ability to sleep and caused severe pain. The employee exceeded her employer's limits for unplanned absences. After the employer tried several other unsuccessful accommodations, including moving shifts and a part-time work schedule, the employee sought an accommodation of additional ongoing intermittent leave. The employer denied the request and terminated the employee. The appeals court held that the employee's requested accommodation was unreasonable as a matter of law and that the employer's termination decision was not actionable under the ADA.
Here, JNL granted Wheeler multiple accommodations, including several leaves of absence and a major job restructuring to the FIW position. However, these efforts did not result in Wheeler's return to regular and predictable attendance and performance of the essential functions of the FIW position. Wheeler does not, and cannot, dispute that his physicians informed JNL in July and August 2013, following his unreported absences in May and June of 2013, that his ability to regularly and predictably attend work had deteriorated and would remain in that state for the foreseeable future. Then, in August of 2013, Wheeler sought an open-ended schedule that would allow him to come and go as he pleased from JNL's physical worksite.
Accordingly, because the accommodation proposed by Wheeler was unreasonable as a matter of law, JNL is entitled to summary judgment on Wheeler's ADA failure to accommodate claim. JNL is also entitled to summary judgment on Wheeler's TDA failure to accommodate claim because there is no duty to accommodate under the TDA. Burress v. City of Franklin, 809 F.Supp.2d 795, 817 (M.D.Tenn.2011) (citing Anderson v. Ajax Turner Co., No. 01A01-9807-CH00396, 1999 WL 976517, at *4 (Tenn.Ct.App. Oct. 28, 1999); 94 Op. Tenn. Att'y Gen. 024, 1994 Tenn. AG LEXIS 24 (Mar. 10, 2004) ("The Tennessee Human Rights Commission should not require reasonable accommodation of a handicapped employee under current state law in light of various court opinions holding that the state statute does not require accommodation.").
Wheeler also advances a claim that JNL not only failed to accommodate him but also failed to even engage in the "interactive process" required by the ADA
To determine the appropriate modification or adjustment necessary to accommodate an employee, the ADA's regulations indicate that "it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 C.F.R. § 1630.2(o)(3). While not set forth in the text of the ADA, the Sixth Circuit has held that "the interactive process is mandatory, and both parties have a duty to participate in good faith." Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 556 (6th Cir.2008). Accordingly, "[w]hen a party obstructs the process or otherwise fails to participate in good faith, `courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" Kleiber, 485 F.3d at 871 (6th Cir.2007) (quoting Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 1285 (7th Cir.1996)).
Importantly, however, failure to engage in the interactive process is only an independent violation of the ADA if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation, Rorrer v. City of Stow, 743 F.3d 1025, 1041 (6th Cir.2014) (citing Keith v. Cnty. of Oakland, 703 F.3d 918, 929 (6th Cir.2013)), or if a reasonable accommodation would have been possible, Lafata v. Church of Christ Home for Aged, 325 Fed.Appx. 416, 422 (6th Cir.2009) (citing 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, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002)). Stated differently, even if an employer did not engage in a good faith interactive process, an employee cannot prevail on such a claim if he cannot establish that he could have been accommodated but for the employer's failure to engage in the interactive process. Trout v. Aerospace Testing Alliance, 303 Fed.Appx. 272, 274 n. ** (6th Cir.2008); Breitfelder v. Leis, 151 Fed.Appx. 379, 386 (6th Cir.2005) (finding there was no violation of the ADA for failing to engage in interactive process because the employee's disability "could not be reasonably accommodated") (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 320 (3d Cir.1999)); see also Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir.2000) ("Employers are not required to create new jobs ... in order to accommodate a disabled individual.").
As discussed above, Wheeler requested an accommodation that was unreasonable as a matter of law. Indeed, Wheeler proposes no different accommodation now. Wheeler's position has not changed — he has consistently sought the accommodation of not having to meet the regular attendance and telephone Queue requirements of the FIW position. Accordingly, JNL was (and is) relieved of its obligation to engage in the interactive process.
Under the ADA's retaliation provision, it is unlawful to "discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA]." 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation, Wheeler must show that (1) he engaged in activity protected by the ADA; (2) JNL knew of this exercise of Wheeler's protected rights; (3) JNL subsequently took an employment action adverse to Wheeler or subjected Wheeler to severe or pervasive retaliatory harassment; and (4) there was causal connection between the protected activity and the adverse employment action. Hurtt v. Int'l Servs., Inc., 627 Fed.Appx. 414, 422, No. 14-1824, 2015 WL 5332531, at *7 (6th Cir. Sept. 14, 2015) (citing Steward v. New Chrysler, 415 Fed. Appx. 632, 643-44 (6th Cir.2011)). The required causal connection is a "but for" relationship. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012). "If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to establish a legitimate, nondiscriminatory reason for the adverse employment action." Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir.1997). The plaintiff then bears the burden of proving that the defendant's "proffered reason for the action was merely a pretext for discrimination." Id. (citation omitted).
JNL does not dispute that Wheeler has pleaded a prima facie case, and the court agrees. As discussed supra, JNL has offered evidence that it terminated Wheeler because he was likely to require intermittent leave on an ongoing and unpredictable basis for the foreseeable future, with no apparent likelihood that his ability to perform the essential functions of his job — i.e., to routinely and regularly report to work and be logged into the telephone Queue to take calls-would improve. The court finds that this is sufficient evidence of a legitimate, non-retaliatory explanation for Wheeler's discharge.
At the final stage of the McDonnell Douglas inquiry, the burden of production requires the plaintiff to prove the employer's proffered reasons for its adverse actions against the employee were, in fact, pretext for retaliation. Wheeler must therefore establish that these stated reasons are pretext by producing "enough evidence to ... rebut, but not to disprove [JNL's] proffered rationale." Shazor v. Prof'l Transit Mgmt., Ltd., 744 F.3d 948, 957 (6th Cir.2014) (internal quotation marks omitted). He may do this by showing that (1) the proffered reason had no factual basis, (2) the proffered reason did not actually motivate JNL's action, or (3) the proffered reason was insufficient to motivate JNL's action. Romans v. Mich. Dep't of Human Servs., 668 F.3d 826, 839 (6th Cir.2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 400 (6th Cir.2009)); Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir.1998).
The primary evidence that Wheeler has offered for why his termination is a pretext is (1) no action was taken against
Moreover, other evidence suggests that the JNL human resources apparatus at least took Wheeler's complaints seriously enough to put him in contact with Douglas's human resources superior so he could voice his concern to someone new and outside the local operating chain. The court does not find that evidence concerning Wheeler's nebulous complaints about Cross and Wheeler rebut the legitimate, non-retaliatory explanation for Wheeler's discharge put forth by JNL. Nor does the timing of Wheeler's discharge vis a vis the complaints, which is not so close as to automatically raise the spectre of retaliation without further direct or circumstantial evidence in support. See Donald v. Sybra, Inc., 667 F.3d 757, 762-63 (6th Cir. 2012). Wheeler's other arguments — e.g., that JNL put him "under a microscope" or that Wheeler encountered a "nosedive in treatment" when JNL realized that it needed to account for Wheeler's whereabouts in May and June of 2013 — are unpersuasive. These characterizations of JNL's reconciliation efforts do not create a dispute of material fact about whether Wheeler was mistreated because, as discussed supra, an employer is not obligated to continue to indulge an employee with accommodations that are unsuccessful, particularly in the face of deteriorating medical circumstances.
Accordingly, the court does not find that Wheeler has demonstrated pretext. JNL is, therefore, entitled to summary judgment on Wheeler's ADA and TDA retaliation claims.
Wheeler claims that he was subject to harassment that constituted a hostile work environment. To establish a claim of hostile work environment based on disability, a plaintiff must prove that: (1) "[he] was disabled; (2) [he] was subject to unwelcome harassment; (3) the harassment was based on [his] disability; (4) the harassment unreasonably interfered with [his] work performance; and (5) the defendant either knew or should have known about the harassment and failed to take corrective measures." Trepka v. Bd. of Educ., 28 Fed.Appx. 455, 460-61 (6th Cir. 2002) (citing Blankenship v. Parke Care
Wheeler claims that the following factors contributed to the hostile work environment that he faced at JNL: "(1) multiple incidents of discriminatory comments by Douglas and Cross; (2) constant interactions in condescending and intimidating tones with Douglas and Cross; (3) regular ridicule and negative comments from Douglas and Cross; (4) increased monitoring and placement under atypical/adverse performance microscope after complaining about perceived discrimination and leave mismanagement; (5) deprivation of entitled rights under the FMLA; (6) discriminatory-based compulsion to request a "continuous" general leave accommodation against company policy, practice, and need of Plaintiff; (7) the complete failure to engage in the interactive process; the complete failure to consider appropriate reasonable accommodation and denial of the compelled accommodation request; (8) the complete failure to consider undue hardship; (9) various forms of retaliation; and (10) termination on the basis of disability." (Docket No. 46 at pp. 31-32.) Of these factors, only the first four could arguably fall within the ambit of workplace harassment; the remainder are merely restatements of Wheeler's other legal claims.
The first three factors cover Wheeler's interactions with Cross and Douglas. Wheeler has testified that (1) Cross made several comments that Wheeler believed were meant to single him out and treat him differently, including: "what's wrong?," "what's wrong with you?," "why can't you be here?," and "what do you have going on with you?" Wheeler further testified that Cross's questions "bothered" him on one occasion when Cross asked "what is wrong with you" in front of other employees. Wheeler also claims Cross spoke to him in a "hostile" tone of voice and laughed about his condition in front of others. Wheeler has separately testified that Douglas commented to him "if you owned a company, would you hire somebody like you [and with your conditions] as an employee?"
Critically, there is no evidence that Wheeler was ridiculed or insulted because of his disability to the point that it `permeated' his work environment and affected his job performance. See, e.g., Hardenburg v. Dunham's Athleisure Corp., 963 F.Supp.2d 693, 708 (E.D.Mich.2013) (holding that, in the absence of evidence of permeating ridicule or insults regarding a disability, no reasonable trier of fact could find that plaintiff suffered from an ADA hostile work environment). Wheeler has adduced no evidence to establish that the conduct of Cross and Douglas, however unseemly, caused him to ever suffer in the
Moreover, these particular comments and tonal choices do not rise to the level of sufficient severity to have created a hostile work environment. See, e.g., Batuyong v. Gates, 337 Fed.Appx. 451, 457 (6th Cir. 2009) (holding that supervisor who "raised his voice, inappropriately, became verbally abusive, and chastised [plaintiff] in front of others" did not create hostile work environment); Goller v. Ohio Dep't of Rehab. & Corr., 285 Fed.Appx. 250 (6th Cir.2008) (finding that supervisor's derogatory name calling was insufficient to establish hostile work environment, especially where the plaintiff did not produce any evidence that it was sufficiently severe or threatening to interfere with the plaintiff's work performance); Trepka v. Bd. of Educ., 28 Fed. Appx. 455, 461 (6th Cir.2002) (concluding that supervisor's "contentious oral confrontation" with yelling, "stern words about [plaintiff's] ability to walk" and "words express skepticism regarding [plaintiff's] condition" did not create hostile work environment); Coulson v. Goodyear Tire & Rubber Co., 31 Fed.Appx. 851, 858 (6th Cir.2002) (holding that being called "looney toon," "wacko," "crazy," and "Rambo" was insufficient to create hostile work environment) (citing McClain v. Southwest Steel Co., 940 F.Supp. 295 (N.D.Okla.1996) (holding that references to plaintiff as "crazy" and "lunatic" and asking "what the f___'s wrong with you" did "not create an environment so hostile as to constitute an adverse employment action under the ADA")).
The fourth of Wheeler's factors — "increased monitoring and placement under atypical/adverse performance microscope" by JNL — is essentially a complaint rooted not in hostility related to work environment, but, rather, in Wheeler's sensitivity to what he perceived to be JNL's newly-unfair focus on his job performance. However, hostile work environment law is not designed to preclude an employer from evaluating its employees' performance, even "under a microscope" as Wheeler suggests. Indeed, the Sixth Circuit has held that "[c]onversations between an employee and his superiors about his performance does [sic] not constitute harassment simply because they cause the employee distress." Keever v. City of Middletown, 145 F.3d 809, 813 (6th Cir.1998). JNL was free to closely monitor Wheeler to determine if he was working on the days for which he was being paid, and it was allowed to discuss those issues with Wheeler without later being guilty of harassment. Even if JNL distressed Wheeler personally by putting him under a "performance microscope" that was not typical for all JNL employees, it did not violate the law in doing so.
Accordingly, Wheeler does not raise a genuine issue of material fact as to his hostile work environment claim and JNL is entitled to summary judgment.
Wheeler claims that JNL violated the common law of Tennessee when it terminated him "in retaliation for exercising his rights." (Docket No. 69, ¶ 58). However, the common law tort of retaliatory discharge is preempted by the THRA and TDA. Esberger v. Williamson Cnty. Gov't, 2015 WL 3929689, at *9-10 (M.D.Tenn. June 2, 2015) (holding that common law retaliatory discharge claims arising out of disability discrimination are preempted by Tennessee statute); Pigott v. Battle Ground Academy, 909 F.Supp.2d 949, 967 (M.D.Tenn.2012) (noting that the THRA makes it a discriminatory practice to retaliate
Wheeler also brings a claim for retaliatory discharge under the TPPA. The TPPA provides in pertinent part:
Tenn. Code Ann. § 50-1-304(b, d). In order to make out a TPPA claim, Wheeler must establish: (1) his status as an employee JNL; (2) his refusal to participate in, or remain silent about, `illegal activities' as defined under the TPPA; (3) his termination; and (4) an exclusive causal relationship between his refusal to participate in or remain silent about illegal activities and his termination. Clark v. Hoops, LP, 709 F.Supp.2d 657, 669-70 (W.D.Tenn.2010) (internal alterations and quotation marks omitted) (quoting Franklin v, Swift Trans. Co., Inc., 210 S.W.3d 521, 528 (Tenn.Ct. App.2006)). The TPPA defines "illegal activities" as "activities that are in violation of the criminal or civil code of this state or the United States or any regulation intended to protect the public health, safety or welfare." Tenn. Code Ann. § 50-1-304(a)(3). The key difference between the TPPA and Tennessee common law retaliatory discharge doctrine is that the TPPA requires a plaintiff to demonstrate that his activity was the sole cause of his termination. Levan v. Sears, Roebuck & Co., 984 F.Supp.2d 855, 869 (E.D.Tenn.2013). A plaintiff has a "formidable burden" in establishing the fourth element of the cause of action. Darnall v. A+ Homecare, Inc., No. 01-A-01-9807-CV00347, 1999 WL 346225, at *5 (Tenn.Ct.App. June 2, 1999).
Here, generously assuming that Wheeler satisfied the second prong of the prima facie case by complaining about violations of the FMLA by JNL, as to the fourth prong JNL has nonetheless offered evidence that it had the authority to terminate Wheeler based on (1) his inability to perform the essential functions of the FIW position and (2) its discretion to not extend any further general unpaid leave under company policy. It is undisputed that Wheeler's doctors opined that his likely need for intermittent leave had increased, regardless of whether Wheeler agreed that he would or would not need the leave. It is also undisputed that Wheeler had no right under company policy to perpetually available general leaves of absence, regardless of whether or not JNL traditionally granted or denied them to others. Accordingly, the court finds that there is not a genuine issue of material fact as to whether Wheeler's complaints about Douglas and Cross were the exclusive cause of his termination. See Caruso v. St. Jude Children's Research Hosp., Inc., 215 F.Supp.2d 930, 938 (W.D.Tenn.2002) (holding that, because "[the defendant] ... established that there were reasons other than, or in addition to, [the plaintiff's] complaints for her discharge, [the plaintiff] ... failed to meet
Under the FMLA, employees are entitled to take twelve weeks of leave for, among other things, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612(1)(D). The FMLA defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11).
Employees who return to work within the approved twelve-week period are entitled to reinstatement to their previous or an equivalent position. Edgar v. JAC Prods., Inc., 443 F.3d 501, 506 (6th Cir. 2006) (quoting 29 U.S.C. § 2614(a)(1)). The Sixth Circuit consistently has held that "an employer does not violate the FMLA when it fires an employee who is indisputably unable to return to work at the conclusion of the 12-week period of statutory leave." Id. at 506-07; see also Bryson v. Regis Corp., 498 F.3d 561, 571-72 (6th Cir.2007); Williams v. Toyota Motor Mfg., Ky., Inc., 224 F.3d 840, 845 (6th Cir.2000) (concluding that an employee who was unable to resume her duties at the end of her FMLA leave period suffered no harm when terminated), rev'd on other grounds, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Cehrs v. Ne. Ohio Alzheimer's Research Ctr., 155 F.3d 775, 784-85 (6th Cir.1998) (holding the employee had no FMLA claim when evidence was undisputed that employee was unable to return to work within period provided by FMLA).
The FMLA prohibits a covered employer from interfering with, restraining, or denying the exercise of its employees' rights under the statute. 29 U.S.C. § 2615(a)(1). Furthermore, the FMLA makes it "unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter." Id. § 2615(a)(2). Two distinct theories of recovery arise under the FMLA. Edgar, 443 F.3d at 507; Arban v. West Publ'g Corp., 345 F.3d 390, 400-01 (6th Cir.2003). The "entitlement" or "interference" theory, "derived from the FMLA's creation of substantive rights," provides that a violation of the FMLA occurs if an employer interferes with an employee's right to take medical leave or to be reinstated after the leave. Arban, 345 F.3d at 401. The "retaliation" theory provides protection for an employee who is discriminated against for exercising her rights under the FMLA. See Hunter v. Valley View Local Sch., 579 F.3d 688, 690-91 (6th Cir.2009) (noting that employers are prohibited from "us[ing] the taking of FMLA leave as a negative factor in employment actions" (alteration in original) (quoting 29 C.F.R. § 825.220(c)) (internal quotation marks omitted)).
29 U.S.C. § 2615(a)(1) makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" provided under the FMLA. 29 U.S.C. § 2615(a)(1). To succeed on an interference claim, Wheeler must show that (1) he was
Wheeler claims that JNL interfered with his right to take FMLA leave. As an initial matter, it is undisputed that JNL granted Wheeler each FMLA leave request prior to May, June and July of 2013. The only issue before the court, therefore, is the reconciliation of Wheeler's May and June absences as FMLA leave days and the exhaustion of Wheeler's rolling twelve weeks of FMLA leave due to those absences. As discussed in this opinion at length, the undisputed record reflects that, between April 24, 2013 and July 12, 2013 (a 58 working-day period), Wheeler had not used his identification badge to enter the JNL worksite and had not logged into the phone system as being physically present at work on 34 of the 58 work days. The undisputed record further reflects that Wheeler arrived to work after 12:00 p.m. on June 7, 13, 18, 21 and 24. Also as discussed herein, JNL concluded, and the court concurs, that Wheeler was not performing the essential functions of the FIW positions on those days, regardless of whether he claims to have been working from home. The record reflects that JNL performed a reconciliation of these absent and tardy dates that was completed on July 25, 2013. JNL's reconciliation concluded that Wheeler had exhausted his available intermittent FMLA leave as of July 5, 2013. JNL elected to cover all of Plaintiff's absences through July 5, 2013 with the 240 hours of FMLA time that had been available to Plaintiff prior to May of 2013. Accordingly, Wheeler's primary argument in favor of his FMLA interference claim — that he was actually working on the days that JNL reconciled as FMLA leave days in May and June of 2013 — is without merit.
Wheeler suggests that the reconciliation is incompatible with the June 19 Eligibility Notice that he received. However, JNL's reconciliation, and its conclusions regarding the assessment of Wheeler's utilized FMLA leave days, supplanted any prior statement in June or July of 2013 as to the availability of remaining available leave days in the current rolling twelve-week period. Indeed, the June 19 Eligibility Notice (which expressly stated that, as of that date, Wheeler was "eligible for FMLA leave" and had "240 hours available due to previous occurrences") necessarily became inaccurate when, after its issuance, JNL became aware of Wheeler's absences in May and June of 2013 and began to investigate them.
At various times in his briefing, Wheeler puts forth a very convoluted argument that JNL conducted two separate reconciliations of his available FMLA time — one, prior to Wheeler's complaints to JNL, that calculated he had FMLA time available, and a second "re-reconciliation," subsequent to his complaints to JNL and the issuance of the July 16 Eligibility Notice, that eventually calculated that he had no additional FMLA time available. The court has carefully reviewed the record and finds that the documentary evidence simply does not support Wheeler's position. The record reflects that JNL, as two separate events, sent Wheeler the July 16 Eligibility Notice, and subsequently conducted only one reconciliation of Wheeler's May and June 2013 attendance with available FMLA leave. Wheeler has adduced no record evidence to support the claim that JNL's reconciliation had any connection to the
Because there is no evidence that Wheeler was entitled to FMLA leave beyond the leave granted by JNL through July 5, 2013, JNL is entitled to summary judgment on Wheeler's FMLA interference claim. See, e.g., Jones, 932 F.Supp.2d at 902 (noting summary judgment is proper on interference claim where an employee has exhausted all leave under the FMLA and is therefore not entitled to further FMLA leave).
FMLA retaliation claims based on circumstantial evidence are evaluated pursuant to the same McDonnell Douglas burden-shifting framework as the ADA/TDA retaliation claims discussed supra. Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 313-16 (6th Cir.2001). Unlike an FMLA interference claim, an FMLA retaliation claim "requires proof of retaliatory intent." Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006). Here, Wheeler testified that he had been taking FMLA leave for years and "it had worked very well," he had received good reviews, and then "that changed and it seems discriminatory to [him]." (Pl. Dep. pp. 252-256.) Wheeler further testified that he believed that Douglas terminated his employment in retaliation for his taking FMLA leave because he could not "understand any other reason why that would have happened." (Id.) This is not proof of retaliatory intent, and it is insufficient to establish a prima facie case of retaliatory discharge under the FMLA. See Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992) (noting that conclusory allegations and subjective beliefs do not raise a triable issue as to pretext). Indeed, JNL's efforts to protect the plaintiff with multiple periods of leave do not bespeak retaliatory intent.
Even if the court were to overlook Wheeler's lack of evidence of retaliatory intent and assume that he has made out a prima facie case, he cannot overcome JNL's legitimate and non-discriminatory reason for terminating his employment. In short, "[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition,... the employee has no right to restoration to another position under the FMLA." 29 C.F.R. § 825.216(c). Because JNL had advice from Wheeler's doctors that he would need ongoing intermittent leave and, therefore, would not be able to fulfill the essential requirements of the FIW position (regular attendance and being logged into the telephone Queue to take calls), there is sufficient evidence that JNL terminated Wheeler's employment because he was unable to return to work in a manner that fulfilled the essential functions of his position upon the expiration of his FMLA leave.
JNL is, therefore, entitled to summary judgment on Wheeler's FMLA retaliation claim.
The court has independently considered Wheeler's motion and finds it to be without merit. Wheeler is not entitled to judgment as a matter of law on any claim. Accordingly, Wheeler's motion for summary judgment will be denied.
The defendant Jackson National Life Insurance Co.'s Motion for Summary Judgment (Docket No. 32) and Supplemental Motion for Summary Judgment (Docket No. 71) will both be
An appropriate order will enter.
Wheeler further asserts that he was allowed to study for his Series 7 examinations, even when in the telephone Queue. However, this does not detract from what was the central role of the Queue to the FIW position. In his statements of fact, Wheeler repeatedly attempts to equate the fact that the Queue may have been "slow" at times with the fact that it was not the FIW's primary duty to be logged in ready to take calls. This does not follow logic or the evidence of record. The court does not find that Wheeler has established a dispute of material fact over whether being logged in and available in the Queue to take calls was the primary duty of the FIW position.
Moreover, for the first time, in his December 28, 2015, Reply to the Supplemental Motion for Summary Judgment, Wheeler raises the argument that JNL did not actually require him to perform his telephone Queue duties prior to July 23, 2013. Aside from being made very late, the court finds this "kitchen sink" argument lacks support and is contrary to Wheeler's prior testimony that he understood telephone Queue duties to be the key duty of the FIW position.
42 U.S.C. § 12111(9).