ELI RICHARDSON, District Judge.
Plaintiff, Penny Weems, filed this action against her former employer, Defendant, Metropolitan Government of Nashville and Davidson County ("Metro"), asserting Family Medical Leave Act ("FMLA") interference and retaliation claims as well as Americans with Disabilities Act ("ADA") discrimination based on failure to accommodate and failure to engage in the interactive process and retaliation claims. (Doc. No. 20.) Before the Court is Defendant's Motion for Summary Judgment (Doc. No. 24). Plaintiff filed a response in opposition (Doc. No. 30), and Defendant replied (Doc. No. 35). For the reasons stated below, Defendant's motion will be denied.
On April 10, 2006, Plaintiff began working for Defendant in the County Clerk's Office as a title and registration clerk. (Doc. No. 31 ¶ 1; Doc. No. 36 ¶ 1.) As a title and registration clerk, Plaintiff was responsible for waiting on customers and processing title transactions for automobile purchases and transfers. (Doc. No. 36 ¶ 3.) Plaintiff started at the downtown office and then moved to offices in Metro Center, Madison, and Hermitage. (Doc. No. 31 ¶ 1.)
Plaintiff has suffered from an anxiety disorder for the past 25 years. (Doc. No. 36 ¶ 4.) As a result, Plaintiff has visited her doctor on a monthly basis for treatment, often leaving work to attend the appointments. (Id. ¶¶ 7-8.) Plaintiff was transferred to the Hermitage branch of the Clerk's Office in part because of its proximity to her doctor's office. (Id. ¶ 9.)
On April 5, 2016, Plaintiff applied for and was approved to take FMLA leave to care for her sick father. (Doc. No. 31 ¶ 2.) During this leave, Plaintiff used all of her accrued sick, vacation, and compensatory leave time. (Id. ¶ 3.) Plaintiff's father passed away on May 30, 2016, and the Clerk's Office granted her five days of paid bereavement leave. (Id. ¶ 4.) Plaintiff utilized approximately seven weeks of continuous FMLA leave to care for her father until his death. (Doc. No. 36 ¶ 17.) Therefore, she had not exhausted the twelve weeks of time allotted to her under the FMLA. (Id. ¶ 18.)
On June 6, 2016, Plaintiff spoke with Brenda Wynn (County Clerk) and Joey Workman (Chief Deputy Clerk, Administration) by phone. (Doc. No. 36 ¶ 25; Doc. No. 24-3 at 8; Doc. No. 31 ¶ 9.) Wynn told Plaintiff that she needed to return to work the following day. (Doc. No. 36 ¶ 26.) Plaintiff did not return to work. (See id. ¶ 38.) Plaintiff was terminated on June 8, 2016. (Doc. No. 31 ¶ 14.) Plaintiff received a letter from Defendant the following day stating that her employment had been terminated. (Doc. No. 36 ¶ 45.) The stated reasons for Plaintiff's termination included insubordination, abuse of leave time, and performing transactions with inadequate or improper documents. (Id. ¶ 46.)
Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See id. at 248. On the other hand, "summary judgment will not lie if the dispute about a material fact is `genuine[.]'" Id.
A fact is "material" within the meaning of Rule 56(c) "if its proof or disproof might affect the outcome of the suit under the governing substantive law." Reeves v. Swift Trans. Co., 446 F.3d 637, 640 (6th Cir. 2006). A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying portions of the record—including, inter alia, depositions, documents, affidavits, or declarations— that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627-28 (6th Cir. 2018); Fed. R. Civ. P. 56(c)(1)(A). The non-moving party must set forth specific facts showing that there is a genuine issue for trial. Pittman, 901 F.3d at 628.
The court should view the facts and draw all reasonable inferences in favor of the non-moving party. Id. Credibility judgments and weighing of evidence are improper. Hostettler v. Coll. of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient to survive summary judgment; rather, there must be evidence upon which the jury could reasonably find for the nonmoving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
Plaintiff alleges the following claims: (1) FMLA interference; (2) FMLA retaliation; (3) ADA discrimination based on failure to accommodate and failure to engage in the interactive process; and (4) ADA retaliation. (Doc. No. 20 at 4-7.) As discussed above, Defendant moves for summary judgment on all claims. The Court discusses each claim in turn.
FMLA interference claims follow the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012). To establish a prima facie case of FMLA interference, the plaintiff must show: (1) she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of her intention to take leave; and (5) the employer denied the employee FMLA benefits to which she was entitled. Id. at 761. Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate non-discriminatory explanation for its action. See id. If the defendant does so, the burden shifts back to the plaintiff who must introduce evidence showing that the proffered explanation is pretextual. See id. at 761-62.
Defendant moves for summary judgment on the fourth element of Plaintiff's FMLA interference claim, arguing that Plaintiff cannot demonstrate that she gave Defendant notice of her intention to take leave after her father's death. To invoke FMLA protection, "an employee must provide notice and a qualifying reason for requesting the leave." Wallace v. FedEx Corp., 764 F.3d 571, 586 (6th Cir. 2014) (quoting Brohm v. JH Props., Inc., 149 F.3d 517, 523 (6th Cir. 1998)). The employee's burden is not heavy. Wallace, 764 F.3d at 586. "[A]n employee gives his employer sufficient notice that he is requesting leave for an FMLA-qualifying condition when he gives the employer enough information for the employer to reasonably conclude that an event described in the FMLA . . . has occurred." Id. (quoting Cavin v. Honda of Am. Mfg., Inc., 346 F.3d 713, 723-24 (6th Cir. 2003)).
Defendant presents two specific arguments regarding the notice requirement. First, Defendant argues that summary judgment should be granted in its favor because Plaintiff did not request leave from the proper supervisor, Joey Workman.
Second, Defendant argues that Plaintiff failed to follow the FMLA's requirements that she respond to Brenda Wynn's attempts to communicate with her. Under 29 C.F.R. § 825.303, "Failure to respond to reasonable employer inquiries regarding the leave request may result in a denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying." Defendant provides Wynn's deposition testimony to support this assertion. Although Wynn testifies that she called and texted Plaintiff, Wynn does not specifically testify that she called Plaintiff about a leave request. (See Doc. No. 24-3 at 31-32, 45-48, 50-53, 60-61.) In addition, Defendant contradicts its own argument because, as previously discussed, Defendant asserts that Plaintiff never requested leave—in which case Wynn would not have sought to communicate with Plaintiff about a leave request as Defendant now claims. Furthermore, under Plaintiff's version of the facts, which the Court must credit on summary as she is non-movant, Wynn would have been able to determine that the leave she was requesting was FMLA-qualifying because, according to Plaintiff's testimony, she specifically asked Wynn for FMLA leave for her anxiety. (See Doc. No. 24-1 at 26-30.) Thus, Defendant's second argument does not persuade the Court that it is entitled human resources decisions involving FMLA leave, and Plaintiff testified to the same. (Doc. No. 25-1 ¶ 6; Doc. No. 24-1 at 21-22.) to summary judgment. Accordingly, the Court will deny Defendant's motion for summary judgment on the FMLA interference claim.
FMLA retaliation claims also follow the burden-shifting framework discussed above. See Donald, 667 F.3d at 762. To establish a prima facie case of FMLA retaliation, the plaintiff must show: (1) she engaged in an activity protected by the FMLA; (2) her employer knew that he was exercising his FMLA rights; (3) her employer took an adverse employment action; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. Hall v. Ohio Bell Tel. Co., 529 F. App'x 434, 439 (6th Cir. 2013).
Defendant interprets Plaintiff's FMLA retaliation claim as based on three different adverse employment actions: (1) Defendant's alleged refusal to grant Plaintiff a second FMLA leave; (2) her termination; and (3) her failure to obtain a promotion. (Doc. No. 20 ¶¶ 37-46.) Although the Court finds that the Amended Complaint's only clear basis for FMLA retaliation claim is Plaintiff's termination, the Court adopts Defendant's interpretation of Plaintiff's Amended Complaint for the purposes of this motion. Defendant's motion addresses all three of these theories, which the Court discusses in turn.
As to Plaintiff's FMLA retaliation claim based on Defendant's alleged refusal to grant Plaintiff a second FMLA leave, Defendant appears to move for summary judgment solely based on the second element—Defendant's knowledge that Plaintiff was exercising her FMLA rights. Because the Court held above that a genuine dispute of material fact precludes summary judgment on the notice issue, which is necessarily tied to Defendant's knowledge that Plaintiff was exercising her FMLA rights, the Court finds that an issue of fact likewise precludes summary judgment in Defendant's favor based on the second element. In other words, based on the previously discussed evidence that Plaintiff presents, Plaintiff raises a genuine issue as to whether Defendant had knowledge that she was exercising her FMLA rights. Accordingly, to the extent Plaintiff's FMLA retaliation claim is based on Defendant's alleged refusal to grant her second FMLA leave, Defendant's motion for summary judgment will be denied.
As to Plaintiff's FMLA retaliation claim based on her termination, Defendant appears to move for summary judged based on the second and fourth elements of Plaintiff's prima facie case—Defendant's knowledge that Plaintiff was exercising her FMLA rights and a causal connection between FMLA activity and the adverse employment action. As previously discussed, the Court will not grant summary judgment based on the second element because a genuine dispute of material fact exists. The issue, therefore, is whether Plaintiff can raise a genuine dispute of material fact as to the fourth element.
Defendant argues that Plaintiff cannot demonstrate the fourth element of her prima facie case related to her termination because she testified in her deposition, "I don't think they fired me because I asked for FMLA." (Doc. No. 24-1 at 46.) However, Defendant fails to note that Plaintiff testified in the same deposition that she thinks that her request for leave related to her anxiety was a factor in her termination. (Id. at 76-77.) In addition, Plaintiff aptly asserts that the close temporal proximity between her alleged request for FMLA leave and her termination is circumstantial evidence of causation. "Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation." Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008). Here, Plaintiff was terminated only two days after she allegedly requested FMLA leave—a period the Sixth Circuit has held to be short enough to give rise to an inference of causation. See Hooks v. Rumpke Transportation Co., LLC, No. 16-3681, 2017 WL 6506360, at *4 (6th Cir. Aug. 8, 2017) (holding that a temporal proximity of "one to two days" between the protected activity and the adverse employment action "is certainly sufficient" to establish a prima facie case); Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007) (holding that a two day interval between an employee's accommodation request and her termination was sufficient to demonstrate a causal connection).
As to Plaintiff's FMLA retaliation claim based on her failure to be promoted, Defendant appears to move for summary judgment based on the second and fourth elements of Plaintiff's prima facie case—Defendant's knowledge that Plaintiff was exercising her FMLA rights and a causal connection between FMLA activity and the adverse employment action. As previously discussed, the Court will not grant summary judgment based on the second element because a genuine dispute of material fact exists. The issue, therefore, is whether Plaintiff can raise a genuine dispute of material fact as to the fourth element of her retaliation claim.
Although Plaintiff does not address this argument in her opposition, the Court cannot find in Defendant's favor without determining that Defendant has met its summary judgment burden. See Delphi Auto. Sys., LLC v. United Plastics, Inc., 418 F. App'x 374, 381 (6th Cir. 2011) ("`a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant's motion for summary judgment to ensure that he has discharged that burden.'" (quoting Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir. 1991))). Defendant presents Plaintiff's own deposition testimony in support of its motion. Plaintiff testified that her failure to be promoted was based on her personality and Wynn's assessment of her competency and not her FMLA leave. (See Doc. No. 24-1 at 52, 59-60.) Plaintiff does not present any evidence or make an argument to the contrary. Accordingly, Plaintiff has not demonstrated that she can establish her prima facie case of FMLA retaliation based on her failure to be promoted. As to this theory, Defendant's motion for summary judgment, therefore, is meritorious.
Rule 56(g)
The Amended Complaint alleges an ADA discrimination claim based on failure to accommodate and failure to engage in the interactive process. (Doc. No. 20 ¶¶ 55-56.)
The McDonnell Douglas burden-shifting approach also applies to Plaintiff's ADA discrimination claim. See Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453 (6th Cir. 2004). To establish a prima facie case of disability discrimination under the ADA for failure to accommodate, a plaintiff must show that: "(1) she is disabled within the meaning of the Act; (2) she is otherwise qualified for the position, with or without reasonable accommodation; (3) her employer knew or had reason to know about her disability; (4) she requested an accommodation; and (5) the employer failed to provide the necessary accommodation." Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 603 (6th Cir. 2018) (quoting Johnson v. Cleveland City Sch. Dist., 443 F. App'x 974, 982-83 (6th Cir. 2011)).
Defendant moves for summary judgment based on the fourth element of Plaintiff's prima facie case—that she requested an accommodation.
Failure to engage in the interactive process can constitute an independent violation of the ADA. Rorrer v. City of Stow, 743 F.3d 1025, 1041 (6th Cir. 2014). Under the ADA, when an employee proposes a reasonable accommodation, "the employer has a duty to engage in an `interactive process' to `identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.'" Melange v. City of Ctr. Line, 482 F. App'x 81, 84-85 (6th Cir. 2012) (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007)). "Even though the interactive process is not described in the statute's text, 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) (citing Kleiber, 485 F.3d at 871). However, "[a]lthough mandatory, 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, 743 F.3d at 1041 (citing Keith v. County of Oakland, 703 F.3d 918, 929 (6th Cir. 2013)). In addition, "[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 (internal quotation marks and citation omitted).
Defendant argues that summary judgment should be granted in its favor because Plaintiff did not propose a reasonable accommodation. The Court disagrees. Again, the Court holds that a genuine dispute of material fact precludes summary judgment on the issue of whether Plaintiff requested leave, which is considered a reasonable accommodation under the ADA. Accordingly, Defendant's motion for summary judgment on the failure to engage in an interactive process claim will be denied.
Plaintiff's ADA retaliation claim also follows the burden-shifting framework discussed above. See Rorrer, 743 F.3d at 1046. To establish a prima facie case of retaliation under the ADA, the plaintiff must demonstrate: (1) she engaged in protected activity; (2) her engagement in that protected activity was known to her employer; (3) her employer, thereafter, took an adverse employment action against her; and (4) a causal link exists between her engagement in the protected activity and the adverse employment action. Clark v. City of Dublin, Ohio, 178 F. App'x 522, 525 (6th Cir. 2006).
Defendant argues that Plaintiff cannot demonstrate the first and fourth elements of her prima facie case of ADA retaliation.
For the foregoing reasons, the Court will
An appropriate order will be entered.
