Huntsman v. MMC CORP

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

JANICE HUNTSMAN, )

)

Plaintiff, )

)

v. ) Case No. 5:21-cv-06138-RK

)

MMC CORP, D/B/A MMC )

CONTRACTORS, INC.; )

)

Defendant. )

ORDER

Before the Court is Defendant MMC Corp., d/b/a MMC Contractors, Inc.’s motion for

summary judgment. (Doc. 36.) The motion is fully briefed. (Docs. 37, 40, 44.)1 After careful

consideration and for the reasons explained below, the motion is GRANTED.

I. Background2

Plaintiff Janice Huntsman began her employment with Defendant MMC Corp. in 2004.

From 2015 until her termination in December 2020, Plaintiff held the position of Senior Payroll

Accountant. Plaintiff was approximately 58 years old when she was terminated.

As the Senior Payroll Accountant, Plaintiff provided payroll support for the more than 500

union employees across multiple states, including processing weekly payroll, completing union

reports, verifying employment. From January 2019 to May 2021, Vickie Sparks supervised only

female employees, including Plaintiff. The accounting department included ten women, several

of whom were older than Plaintiff, and two men. Joyce Wohler, who was supervised by Ms.

1 Defendant argues in its reply that Plaintiff’s suggestions opposing summary judgment should be

stricken or disregarded for failure to comply with Local Rule 7.0(d)’s page limitation. (Doc. 44 at 4.) In

response, Plaintiff filed a belated motion for leave to exceed the page limitation as to her suggestions

opposing summary judgment by approximately ten (10) pages. (Doc. 45.) In the interests of justice,

because Defendant has had sufficient opportunity to respond to Plaintiff’s arguments, and without a finding

otherwise of undue prejudice, the Court GRANTS Plaintiff’s motion for leave to file excess pages and will

consider Plaintiff’s suggestions in opposition as filed.

2 Except where otherwise noted, these facts are taken from the parties’ statements of uncontroverted

material facts. The Court has omitted facts properly controverted, facts asserted that are immaterial to the

resolution of the pending motion, facts asserted that are not properly supported by admissible evidence,

legal conclusions, and argument presented as an assertion of fact.

Sparks and was designated to assume Plaintiff’s position when Plaintiff retired, was over the age

of 40 during the relevant time.

In March 2020, Plaintiff and others began working at home in response to the COVID-19

pandemic. MMC Corp. initiated a staged return for its employees to in-person work in May 2020.

At her deposition, Plaintiff testified that she had a conversation with Ms. Sparks sometime in May

2020 after which Plaintiff understood that she would be allowed to work remotely until her planned

retirement in December 2021. Nonetheless, Plaintiff returned to the office for in-person work on

August 3, 2020.

Before working from home in response to COVID-19, Plaintiff had been assigned a private

office space. Upon returning to the office in August 2020, however, Plaintiff was assigned a shared

office space. Ms. Wohler (Plaintiff’s designated replacement for when Plaintiff retired) was

assigned the private office space that Plaintiff had previously occupied. Ms. Sparks testified at her

deposition that Ms. Wohler was assigned the private space because Ms. Sparks “wanted to have

[Ms. Wohler] next to me so I could train her to perform the payroll duties.” (Doc. 37-2 at 4.)

Plaintiff returned to working remotely a few weeks later between August 25, 2020, and August

31, 2020, to take care of her husband who was disabled and who had recently broken his ankle.

On September 2, 2020, Ms. Sparks and Erik Dahl counseled Plaintiff regarding her

professionalism and demeanor in the workplace, including how Plaintiff voiced her concerns and

fear about working in-person due to COVID-19. Two days later, on September 4, 2020, Plaintiff

took leave pursuant to the Family and Medical Leave Act (“FMLA”) for major depression, panic

disorder, and severe anxiety.

Plaintiff was initially approved for a period of four weeks of FMLA leave, i.e., until

approximately October 5, 2020, pending release by her physician. On October 5, Plaintiff notified

Defendant’s benefits manager and HR systems administrator, Joanna Wright, by email that

Plaintiff had not been released from care and that her doctor was completing new FMLA

paperwork. Ms. Wright received Plaintiff’s new FMLA paperwork from Plaintiff’s doctor, Dr.

M.A. Mirza at White Oak Psychiatric Services, on October 7, 2020, indicating an estimated return

date of November 18, 2020. The following day, Ms. Wright informed Plaintiff by email that her

FMLA leave had been approved from “9/4-11/11/20, subject to an update and release from your

doctor.”

Approximately one month later, on November 3, 2020, Plaintiff notified Ms. Wright by

email that she would “not be released by my Doctor to return to work at the end of my FMLA,”

and “will update you when I have more information.” Ms. Wright responded by email less than

an hour later requesting an update from Plaintiff’s doctor regarding her continued leave “by

11/11/20 if possible.”

Plaintiff’s FMLA leave was exhausted on November 11, 2020. On the same day, Plaintiff

and Ms. Wright exchanged several emails concerning the exhaustion of her FMLA leave, Dr.

Mirza’s prior indication that leave was necessary until approximately November 18, 2020, and

Plaintiff’s request for one more week of leave pending a doctor’s appointment that was scheduled

for November 17, 2020. On the evening of November 17, 2020, Ms. Wright emailed Plaintiff

requesting an update from Plaintiff’s scheduled doctor’s visit. Plaintiff responded the following

morning that, “Per my Doctor, I am unable to return to work at this time. I will need to be off

work for another 4 to 6 weeks while receiving additional treatment.” Shortly after receiving this

email, Ms. Wright responded, asking for “an updated note from your doctor indicating your need

for additional time off and the anticipated return date[.]” Plaintiff stated that she would request

the information and “will get it to you as soon as I can.”

On November 19, 2020, Ms. Wright emailed Plaintiff stating that a doctor’s note had not

yet been received and requesting that Plaintiff provide one that day. Plaintiff responded the next

morning, November 20, 2020, indicating that she would “request this from one of the Doctors that

I am currently seeing again today.” When Ms. Wright requested a timeframe to expect the doctor’s

note, Plaintiff responded that she was not sure about a time but would follow up with one of her

doctors. That same afternoon, Ms. Wright received an “accommodation letter” for Plaintiff from

Arianna Williams, a licensed processional counselor. Ms. Wright informed Plaintiff by email that

she had received the letter and requested that Plaintiff provide “information about your schedule

for seeing your psychiatrist and therapist,” and noted that Plaintiff’s counselor had “suggested a

note from Dr. M[irza] . . . may be appropriate.” Plaintiff responded that she would “request a letter

from Dr. Mirza and will get it to you.”

On November 23, 2023, Ms. Wright emailed Plaintiff that her FMLA leave had finally

exhausted on November 11, 2020, and that “since you have not returned to work, your group health

benefits will now have to be offered through COBRA.” 3 Ms. Wright informed Plaintiff that

3 “COBRA” refers to the Consolidated Omnibus Budget Reconciliation Act, a federal law that

“[w]hen you return to work, you can rejoin our group plan without any waiting period” and that

coverage under COBRA “will backdate to November 12, 2020.”

Ms. Wright testified that it is MMC Corp.’s “practice” that “[w]hen a person has not

returned from leave, and . . . there’s no date for them returning from leave, their FMLA is expired,

they are put on [COBRA]” [sic]. (Doc. 37-10 at 4.) Plaintiff attests that, as a payroll accountant,

she is aware of one male employee, Dave Andrews, who “had exhausted FMLA leave and was not

required to be converted to COBRA health insurance; other employees would donate their PTO

time to him so he could continue to carry the benefits, and even when he was in the hospital.”

(Doc. 40-13 at 2, ¶ 9.) Plaintiff ultimately continued her health insurance through COBRA.

On December 1, 2020, Ms. Wright emailed Plaintiff indicating that she had not received

the additional information that had been requested from Dr. Mirza and Plaintiff’s counselor, Ms.

Williams. Ms. Wright explained that “we need this information to evaluate your request for

extended leave” and concluded: “It is very important we receive this information no later than

3:00pm on Friday, December 4 or we will accept this as having resigned your employment with

MMC Contractors.” Approximately one hour later, Plaintiff responded that she would “follow up

with [Ms. Williams] during my appointment tomorrow morning,” “forward this form to Dr.

Mirza’s office today,” and would follow up with Dr. Mirza “at my Thursday appointment.”

Plaintiff also indicated that she did not intend to resign her position.

The morning of December 4, 2020, Plaintiff sent an email to Ms. Wright requesting that

she “confirm that you have received the requested information from [Ms. Williams] . . . this

morning,” and also that “I have requested the form also be completed by Dr. Mirza and hoping it

is sent to you today as well.” Plaintiff again indicated that she did not intend to resign. Ms. Wright

responded that she had received the updated information from Ms. Williams and that she would

“watch for the info from Dr. Mirza.”

On December 7, 2020, Ms. Wright informed Plaintiff that she had not received an update

from Dr. Mirza. Plaintiff responded that she would “reach out to his office again to see if they can

provide something to you regarding my ongoing treatment.” Ms. Wright emailed Plaintiff later

that afternoon to confirm Ms. Williams’ request that Plaintiff be off work until December 26, 2020,

allows certain employees the right to choose to continue group health benefits provided by a group health

plan for limited periods of time and under certain circumstances. See also FAQs on COBRA Continuation

Health Coverage for Workers, U.S. Dept. of Labor, Employee Benefits Security Administration, available

at https://tinyurl.com/2xwyekrc (last visited Feb. 22, 2023).

and that Plaintiff was requesting to “work from home after that for a period of time” as an

accommodation. Ms. Wright also noted: “Information from Dr. Mirza about the time up until

12/26 is helpful to fully evaluate your leave needs, especially if he thinks you can work Tues &

Thurs [sic] when not in treatment. That’s what we are trying to confirm for certain.” Plaintiff

responded as follows:

Just an FYI, I meet with my individual therapist on the days I am not in group and

I meet with Dr. Mirza about every 10 days. Due to insurance limitations, I can only

talk with one Doctor per day.

After Ms. Wright again asked for confirmation of the current requests for time off from work and

accommodations, Plaintiff responded that it was her “understanding that I would need to be off

through December 31 and an accommodation to work from home after that, for a period of time.”

Ms. Wright responded that Ms. Williams had requested leave until December 26, and that that

request would be “sen[t] out to you and your supervisor,” with Ms. Williams copied on the email.

Plaintiff responded that “the December 31 date was given to me by Dr. Mirza and I have reached

out to his office (and will call them again tomorrow) to confirm this date.”

The next day, December 8, 2020, Ms. Wright again emailed Plaintiff reiterating that she

had not received a reply from Dr. Mirza. A few hours later, Ms. Wright received a fax from Dr.

Mirza with a Medical Provider Report for the Americans with Disabilities Act (“ADA”), indicating

an anticipated healing period of 3-4 months.

On December 9, 2020, Ms. Wright received an email from White Oak Psychiatric

indicating that “per Dr. Mirza” “the effective date for [Plaintiff] to return to work” was March 8,

2021. Ms. Wright responded by email inquiring whether “this include[s] working from home,”

explaining that: “[Plaintiff] indicated she could start working from home after 12/31. But her

therapist Arianne Williams said 12/26 so we need guidance on that. Does the 3/8/21 date refer to

when [Plaintiff] can return to the office?” [sic] Ms. Wright sent a follow-up email to White Oak

Psychiatric the following morning, December 10, 2020, asking for information regarding “when

[Plaintiff] can start working from home and when she can return to the office environment.”

On December 11, 2020, Ms. Wright called White Oak Psychiatric and was told she would

receive a reply by the end of the day; Ms. Wright did not receive any follow up, however. The

same day, Ms. Wright emailed Plaintiff regarding the March 8 return date as indicated by Dr.

Mirza; Plaintiff responded that she had not seen the forms but would follow up with Dr. Mirza

regarding “the timeline for my ongoing care” at an appointment scheduled for December 17. Ms.

Wright responded:

[Ms. Huntsman] without proper information we cannot approve your request for

leave. [Ms. Williams] says 12/26, you say 12/31 and and [sic] Dr. Mirza says 3/8.

Please call the office this morning and ask what was said and insist they reply to

my email with clarification or this will affect your continued employment.

Four days later, on December 15, 2020, Ms. Wright sent a follow-up email stating that she

had not received a response from either Plaintiff or Dr. Mirza:

We must have a definitive answer regarding your leave status and ability to return

to work, including the date you may begin working from home and the date you

can return to the office so that we may review the request. We must have this

information by noon on December 18, 2020 or we will be unable to continue your

employment.

Plaintiff responded shortly thereafter, indicating that Ms. Wright should expect updated

information from Ms. Williams and that she (Plaintiff) would reach out to Dr. Mirza’s office again;

Plaintiff further indicated that she had been told that all the required forms had been returned. Ms.

Wright responded, highlighting the conflicting and unclear return dates, and reiterating that “I need

to know the date you can return to work from home and the date you can return to the office by

noon on Friday, December 18.”

Two days later, on December 17, 2020, Plaintiff emailed Ms. Wright:

You should be receiving updated information from Dr. Mirza. Based on my

conversation with him (and [Ms. Williams]), I should be able to return to work from

home on January 4 and possible [sic] return to the office after March 8. I hope this

is the clarification you were looking for.

Ms. Wright responded a few hours later that she had not received an update from Dr. Mirza, “but

will watch for it by tomorrow.” Plaintiff confirmed that Dr. Mirza would respond by fax and that

they had the correct fax number.

On the morning of December 18, 2020, Ms. Wright received a letter from Ms. Williams

extending Plaintiff’s discharge date from December 25, 2020 to January 1, 2020. In addition,

Plaintiff responded to Ms. Wright’s earlier email and indicated that she would “call [Dr. Mirza’s

office] again this morning and ask them to send you the information.” At 4:15 pm on December

18, Ms. Wright emailed Plaintiff that she had not “receive[d] an update from Dr. Mirza. There has

been no fax.”

On the morning of December 21, 2020, Ms. Wright informed Plaintiff by email that she

“still ha[s] not received any information from Dr. Mirza,” and indicated that she “must receive

information from Dr. Mirza by end of business today . . . confirming [Plaintiff’s] ability to work

from home starting on January 4, 2021.” The email stated that if the requested information was

not received, “we will conclude that the interactive dialogue has failed and will proceed with

processing your termination from employment.” Plaintiff responded that she would “call them

again this morning and ask them to send information to you.” At approximately 6:45 pm, Ms.

Wright sent the following email to Plaintiff:

As of 6:30 this evening, I still have not received nothing [sic] from Dr. Mirza. As

I previously explained, we have been seeking information about when/if you can

return to working from home for well over a month. We have provided you and

your health care providers multiple opportunities to provide this information and

clarify the conflicting information. The accounting team needs someone to perform

your role and the uncertainty around when and if you will resume your duties is

untenable.

Accordingly, we believe the ongoing failure to provide the information requested

has resulted in a break down of the interactive dialogue. We are terminating your

employment effective today, December 21, 2020, so the team can begin its search

for someone to perform your job duties.

Plaintiff filed a charge of discrimination based on sex and disability with the Equal

Employment Opportunity Commission on March 16, 2021, for which she received a Notice of

Right to Sue on August 17, 2021. (Docs. 3-1, 3-2.)

Further facts are set forth as necessary.

II. Legal Standard

“Summary judgment is required if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. Ins. Co. v. Great

Am. Ins. Co., 893 F.3d 1098, 1102 (8th Cir. 2018) (citations and quotation marks omitted). “In

considering a motion for summary judgment, the court does not weigh the evidence, make

credibility determinations, or attempt to discern the truth of any factual issue.” Morris v. City of

Chillicothe, 512 F.3d 1013, 1018 (8th Cir. 2008) (citation omitted). Instead, the Court views the

evidence “in the light most favorable to the nonmoving party and giv[es] the nonmoving party the

benefit of all reasonable inferences.” Fed. Ins. Co., 893 F.3d at 1102 (citation and quotation marks

omitted).

A party may be entitled to summary judgment if the opposing party “‘fails to make a

showing sufficient to establish the existence of an element essential to that party’s case.’” Hodge

ex rel. Farrow v. Walgreen Co., 37 F.4th 461, 464 (8th Cir. 2022) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). “Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks

omitted). In other words, while the summary judgment “movant has the burden of showing that

there is no genuine issue of fact, . . . the plaintiff is not thereby relieved of his own burden of

producing in turn evidence that would support a jury verdict.” Hodge, 37 F.4th at 464 (citation

and quotation marks omitted). Once a summary judgment movant has satisfied his or her burden,

the non-movant must point to some “affirmative evidence, specific facts, showing that there is a

genuine dispute” as to a material fact. Id. (citation and quotation marks omitted).

III. Discussion

Plaintiff asserts five claims: Count I – sex/gender discrimination in violation of Title VII

of the Civil Rights Act of 1964; Count II – age discrimination in violation of the Age

Discrimination in Employment Act (“ADEA”); Count III – unlawful retaliation in violation of the

FMLA; Count IV – disability discrimination and harassment in violation of the ADA; and Count

V – associational discrimination in violation of the ADA. Defendant seeks summary judgment as

to each claim. The Court addresses each claim and the parties’ arguments in turn, below.

A. Rule 56(c)

Before reaching the merits, Defendant argues that Plaintiff failed to comply with Rule 56(c)

of the Federal Rules of Civil Procedure and Local Rule 56.1(c) in her summary judgment brief.

(Doc. 44 at 5.) Specifically, Defendant argues – and the Court agrees – that throughout the

substantive portions of her brief opposing summary judgment, Plaintiff refers to facts that are

unsupported by (or are inaccurate as to) the parties’ statements of material facts. Rule 56(c)

requires that a party must “cit[e] to particular parts of materials in the record” to support an

assertion of fact at summary judgment. Moreover Rule 56(e) provides that “[i]f a party fails to

properly support an assertion of fact . . . the court may . . . grant summary judgment if the motion

and supporting materials – including the facts considered undisputed – show that the movant is

entitled to it; or issue any other appropriate order.” Rule 56(e)(3)-(4). For purposes of ruling on

Defendant’s motion for summary judgment, the Court need not consider any unsupported factual

assertions contained in the argument section of Plaintiff’s opposition brief for which Plaintiff failed

to include, reference, and provide an appropriate citation to the record in responding to Defendant’s

statement of material facts or in her own statement of material facts. See Johnson Trustee of

Operating Eng’rs Local #49 Health & Welfare Fund v. Charps Welding & Fabricating, Inc., 950

F.3d 510, 523-24 & 524 n.1 (8th Cir. 2020) (holding district court did not abuse its discretion in

considering plaintiffs’ arguments only to the extent they cited to the summary judgment record

with particularity). However, because the Court prefers to resolve legal issues on the merits and

not on procedural missteps, the Court analyzes the matter on its merits and likewise concludes that

Defendant is entitled to judgment as a matter of law notwithstanding the procedural errors.

B. Count I – Title VII sex/gender discrimination claim

In Count I, Plaintiff first alleges that Defendant discriminated against her and “treated

Plaintiff and other females less favorably than their male . . . counterparts” in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., involving the revocation of her work-

from-home status, re-assigning Plaintiff to a shared work space (rather than private office) upon

returning to in-person work, and ultimately terminating Plaintiff after she exhausted her FMLA

leave.

Title 42 U.S.C. § 2000e-2(a)(1) makes it unlawful for an employer to discriminate against

an employee because of his or her sex. A Title VII claim for sex/gender discrimination survives

summary judgment if an employee (1) “produce[s] direct evidence of discrimination that

demonstrates a specific link between the alleged discriminatory animus and the challenged

decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion

actually motivated the adverse employment action,” or (2) satisfies the “McDonnell Douglas[4]

burden-shifting framework to establish an inference of unlawful discrimination.” Tenge v. Phillips

Modern Ag Co., 446 F.3d 903, 907 (8th Cir. 2006) (citations and quotation marks omitted).

1. Direct evidence of unlawful sex/gender discrimination

Plaintiff first argues that she has presented direct evidence of sex/gender discrimination

sufficient to survive summary judgment. In the employment-discrimination context, “direct

evidence of discrimination” means “evidence that clearly points to the presence of an illegal

motive.” Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004). In Griffith, for instance,

the Eighth Circuit found that the plaintiff did not present “direct evidence of discrimination”

despite co-worker testimony recounting insensitive remarks about African-Americans and female

employees without any evidence that the ultimate decisionmaker made similar insensitive remarks

concerning the plaintiff’s Hispanic background. Id. In other words, the Court found that “the

4 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

requisite causal link between remarks reflecting gender bias and actions taken against [plaintiff] is

lacking.” Id. (citing Simmons v. Oce-USA, Inc., 174 F.3d 913, 915-16 (8th Cir. 1999)).

Here, Plaintiff argues that “all facts taken in the light most favorable to Plaintiff establish

that a female accounting co-worker, Anna Battle, was terminated during her cancer treatments

while male co-workers, including Gary Krabiel and Dave Andrews, were permitted to stay

employed throughout a lengthy course of cancer treatments and after the exhaustion of FMLA

leave.” (Doc. 40 at 35-36.) These facts are not found within the parties’ statements of material

facts nor are they accompanied by any citation to the summary judgment record; they thus may

not properly be relied on by Plaintiff to oppose Defendant’s motion for summary judgment. See

§ III.A., above.

Even if these facts were properly before the Court at summary judgment, they do not

provide direct evidence of discrimination to withstand summary judgment. Rather, these facts

supporting a disparate treatment argument under the inference-of-discrimination framework under

McDonnell Douglas. See Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009) (recognizing

that a plaintiff may establish an inference of discrimination under the McDonnell Douglas

framework “by producing facts that similarly situated employees, not in the protected class, were

treated differently”); Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th Cir. 2000).

In other words, that another female co-worker (in addition to Plaintiff) was terminated while male

co-workers were permitted to stay throughout the course of lengthy medical treatment does not

provide clear evidence of illegal motive by a decisionmaker in the adverse action that Plaintiff

herself alleges occurred against her. See Wade v. Sandord Med. Ctr., No. 3:16-CV-03034-RAL,

2018 WL 3825904, at *9 (D.S.D. Aug. 10, 2018) (holding evidence inter alia of younger

employees being treated more favorably than plaintiff did not constitute direct evidence of age

discrimination “because a fact finder would be required to infer from this evidence that age was

the motivating factor behind [plaintiff]’s termination”).

2. McDonnell Douglas inference of discrimination

Without direct evidence of unlawful discrimination, Plaintiff “bears the initial burden of

making out a prima facie case of discrimination” under McDonnell Douglas. Elnashar v.

Speedway SuperAm., LLC, 484 F.3d 1046, 1055 (8th Cir. 2007) (citing McDonnell, 411 U.S. at

802).

To establish a prima facie case, the plaintiff must show that: (1) [she] belonged to

a protected group; (2) [she] was qualified for the position in question; (3) [she] was

subjected to an adverse employment action; and (4) the adverse employment action

occurred under circumstances giving rise to an inference of discrimination.

Id. (citation omitted). Once a plaintiff has done so, “the burden shifts to the defendant employer

to articulate a legitimate, nondiscriminatory reason for its action.” Id. (citation omitted). “If the

defendant satisfies its burden [to demonstrate a legitimate, nondiscriminatory reason for the action

it took], then the plaintiff must show that the nondiscriminatory reason was a pretext for

discrimination.” Id. (citation omitted).

Defendant first argues that Plaintiff cannot establish a prima facie case of sex

discrimination. Defendant argues (and Plaintiff provides no argument to the contrary) that being

required to return to work in person and her reassignment to a shared workspace are not adverse

employment actions that give rise to a Title VII employment-discrimination claim. See Jackman

v. Fifth Jud. Dist. Dep’t of Corr. Servs., 728 F.3d 800, 804 (8th Cir. 2013) (explaining that an

adverse action means “a tangible change in working conditions that produces a material

employment disadvantage, including but not limited to, termination, cuts in pay or benefits, and

changes that affect an employee’s future career prospects, as well as circumstances amounting to

constructive discharge”). Plaintiff does not argue the conditions that she return to in-person work

or reassignment to a shared workspace amounted to constructive discharge. Of course, termination

is an adverse employment action. See id. The next question, then, is whether Plaintiff was

terminated under circumstances giving rise to an inference of discrimination, the fourth factor of

the McDonnell Douglas framework.

In Lake v. Yellow Transportation, Inc., 596 F.3d 871 (8th Cir. 2010), the Court recognized

that a plaintiff may show both an inference of discrimination and pretext “by showing that an

employer (1) failed to follow its own policies, (2) treated similarly situated employees in a

disparate manner, or (3) shifted its explanation of the employment decision.” Id. at 874-75

(citations omitted). To demonstrate that similarly situated employees were treated differently

under McDonnell Douglas, a plaintiff “must show the employees were similarly situated in all

relevant respects.” Young v. Builders Steel Co., 754 F.3d 573, 578 (8th Cir. 2014) (citations and

quotation marks omitted). In this vein, to show similarly situated employees were treated

differently than her, Plaintiff asserts that “Male employees at MMC were not terminated when

their FMLA leave was exhausted, yet Plaintiff and her co-worker, Anna Battle, were.” (Doc. 40

at 37.)5

As noted above, “to establish a prima facie case based on differential treatment, a plaintiff

must show that she and the more leniently treated employees were similarly situated in all relevant

respects.” Gibson v. Concrete Equip. Co., Inc., 960 F.3d 1057, 1063 (8th Cir. 2020) (citation and

quotation marks omitted). This is a high burden. See EEOC v. Kohler Co., 335 F.3d 766, 776 (8th

Cir. 2003) (to meet the “rigorous” similarity test for purposes of discrimination claims, the plaintiff

must set forth evidence “that there were individuals similarly situated in all relevant aspects to her

by a preponderance of the evidence” and that the other individual were treated differently than the

plaintiff) (citations and quotation marks omitted).

Here, at most, the only assertion Plaintiff makes in her argument is that at least one male

co-worker undergoing cancer treatment was not terminated after having exhausted FMLA leave

whereas Plaintiff was terminated after having exhausted her FMLA leave. This is not sufficient

to sustain Plaintiff’s burden to demonstrate that that male co-worker was similarly situated in all

relevant respects to Plaintiff, however. See Said v. Mayo Clinic, 44 F.4th 1142, 1148 (8th Cir.

2022) (plaintiff must “offer specific, tangible evidence of at least one other employee who was

similarly situated in all relevant respects, including committing offenses of the same or comparable

seriousness to [plaintiff]’s, who received disparate treatment compared to [plaintiff]”) (citations

and quotation marks omitted). The necessary relevant respects in this case would at least include

the circumstances surrounding the exhaustion of FMLA leave (including the opportunity or

communication as to donated PTO time), and the communication and information exchange

between the employee, the employer (Defendant), and the employee’s healthcare professionals for

continued leave and possible accommodations for continued employment (including the

timeliness, completeness, and consistency of those communications).

Plaintiff has not presented the necessary evidence at summary judgment to sustain her

burden of demonstrating a prima facie case of discrimination. In short, the summary judgment

record before the Court does not include any facts on which Plaintiff could rely that the referenced

5 The Court again emphasizes that these facts are not properly before the Court for summary

judgment. See § III.A, above. Nonetheless, for sake of argument, the Court presumes these facts are

properly before the Court on summary judgment.

male employees were similarly situated to Plaintiff in such a manner that would support an

inference of discrimination in Plaintiffs’ termination.

Accordingly, Defendant is entitled to summary judgment as to Count I based not only on

Plaintiff’s procedural missteps but also on the merits.

C. Count II – ADEA age discrimination claim

In Count II, Plaintiff claims that she was treated less favorably than younger employees

and asserts a claim for age discrimination in violation of the ADEA, 29 U.S.C. § 621 et seq.

Plaintiff alleges she was treated less favorably than younger employees and that she was

discriminated against based on her age to the extent Defendant revoked her previously agreed-to

work-from-home status, reassigned her to a shared workspace, and terminated her employment.

Title 29 U.S.C. § 623(a)(1) makes unlawful any discrimination within the employment

relationship “because of” an employee’s age. To sustain a claim of age discrimination under the

ADEA, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or

circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v.

FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); accord Hilde v. City of Eveleth, 777 F.3d 998,

1003 (8th Cir. 2015). Stated differently, a plaintiff must show that “age actually motivated the

employer’s decision”; in other words, the plaintiff must show that “the employee’s age actually

played a role in the employer’s decision[-]making process and had a determinative influence on

the outcome.” U.S. EEOC v. City of Independence, MO, 471 F.3d 891, 894 (8th Cir. 2006)

(cleaned up). To establish a prima facie case of age discrimination, Plaintiff must show: “(1) she

is over 40; (2) she was qualified for the position; (3) she suffered an adverse employment action;

and (4) substantially younger, similarly situated employees were treated more favorably.”

Faulkner v. Douglas Cnty. Neb., 906 F.3d 728, 734 (8th Cir. 2018) (citations omitted).

To demonstrate a prima facie case, Plaintiff primarily relies on the fact that the individual

she was replaced with after being terminated (Ms. Wohler) is two years younger than Plaintiff. A

gap of two years in age between a plaintiff and her replacement does not by itself support a

reasonable inference of age discrimination. In Ramlet v. E.F. Johnson Co., 507 F.3d 1149 (8th

Cir. 2007), the Court held that a “five-year difference is not sufficient” to raise an inference of age

discrimination because the replacement employee “clearly was not sufficiently younger.” Id. at

1154; see Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1136 (recognizing that a prima facie case

of age discrimination requires a showing that a plaintiff’s replacement “was significantly

younger”; holding that plaintiff “failed to establish a prima facie case of age discrimination since

his permanent replacement was only two-and-a-half years younger than he”); Hillesheim v. Wells

Fargo Bank, N.A., No. 20-cv-0533 (WMW/HB), 2021 WL 4173167, at *4 (D. Minn. Sept. 4, 2021)

(holding five-year age gap would not raise inference of age discrimination); Hart v. Opaa! Food

Mgmt., Inc., 244 F. Supp. 3d 969, 978-79 (W.D. Mo. 2017) (holding nine-year age difference “is

too small to show that [plaintiff] was replaced by a ‘substantially younger’ employee” and thus

failed to establish a prima facie case of age discrimination).

Indeed, none of the out-of-circuit cases Plaintiff herself cites found a minimal two-year age

difference adequately raised any inference of discrimination. See, e.g., Rudenborg v. Di Giorgio

Corp., No. 08-5791 (KSH), 2011 WL 4594220, at *5 (D.N.J., Sept. 30, 2011) (finding three-year

age gap sufficient to raise an inference of discrimination). Finally, even if it did, an age gap alone

“though necessary to establish prima facie case, possesses insufficient probative value to persuade

a reasonable jury that plaintiff was discriminated against.” Carraher v. Target Corp., 503 F.3d

714, 719 (8th Cir. 2007) (citation and quotation marks omitted). Plaintiff otherwise has failed to

provide evidence that she was discriminated against based on her age.6 Defendant is therefore

entitled to judgment as a matter of law as to Count II.

6In her brief, Plaintiff asserts that as a payroll accountant she “was aware of several older women

being laid off in March of 2020” who were either replaced by or whose job duties were split among much

younger employees, including one employee “age 60s” who was replaced by a younger individual “age

30s.” Plaintiff also asserts that she “is aware of at least one older female . . . who was not provided training

on new computer equipment but younger women were, and the lack of training was held against the older

female[] resulting in termination.” These assertions violate Rule 56(c), however, because Plaintiff fails to

provide any supporting citation for these assertions in the summary judgment record.

Even if the Court were to consider these assertations, it still would not be enough to satisfy

Plaintiff’s burden to demonstrate a prima facie case of age discrimination, however. Only one of the

assertions suggests itself an inference of age discrimination to the extent the terminated employee was

replaced by an employee 30 years younger. Nonetheless, “[t]he ultimate question is whether the employer

intentionally discriminated,” and therefore Plaintiff’s “age must have been the factor that made a difference

as to whether or not she was terminated” or suffered any other adverse employment action. Canning v.

Creighton Univ., 995 F.3d 603, 612 (8th Cir. 2021) (citations and quotation marks omitted). Even if these

facts were properly raised in summary judgment, they would not give rise to an inference that Plaintiff was

discriminated against because of her age to withstand summary judgment. See Denn v. CSL Plasma, Inc.,

816 F.3d 1027, 1035-36 (8th Cir. 2016) (finding “me too” failed to raise genuine question of material fact

to avoid summary judgment where plaintiff did not demonstrate similarities between how the comparator

was treated other than that they both received written warnings from the same individual). This “similarly

situated coworker inquiry” “requires proof that the other employees were similarly situated in all relevant

respects.” Canning, 995 F.3d at 613-14 (citation and quotation marks omitted). The value of this type of

evidence “depends on many factors, including how closely related the evidence is to the plaintiff’s

circumstances and theory of the case.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008).

D. Count III – FMLA retaliation claim

In Count III, Plaintiff alleges that Defendant unlawfully retaliated against her for exercising

her rights under the FMLA by terminating her health insurance benefits and her employment.

The FMLA prohibits discrimination by an employer against an employee for the employee

exercising her rights to leave under the FMLA. Stallings v. Hussmann Corp., 447 F.3d 1041, 1051

(8th Cir. 2006). “Basing an adverse employment action on an employee’s use of [FMLA] leave”

constitutes an unlawful action under the FMLA. Id. (citation and quotation marks omitted). To

establish a prima facie claim for FMLA retaliation, a plaintiff must “show that she exercised her

rights afforded by the [FMLA], that she suffered an adverse employment action, and that there was

a causal connection between her exercise of rights and the adverse employment action.” Phillips

v. Mathews, 547 F.3d 905, 912 (8th Cir. 2008) (citation and quotation marks omitted). If the

plaintiff does so, “the burden shifts to [the defendant] to come forward with evidence of a

legitimate, nondiscriminatory reason for the adverse action,” after which the plaintiff “must come

forward with evidence that creates an issue of fact as to whether the asserted reason was pretext

for discrimination.” Id. (citations omitted). A plaintiff may demonstrate pretext by showing that

“similarly situated employees who did not engage in the protected activity were treated more

leniently.” Id. (citation and quotation marks omitted).

Defendant argues that Plaintiff cannot demonstrate a prima facie case for FMLA retaliation

because she fails to demonstrate a causal connection between any adverse action and her request

for FMLA leave. “To establish a causal link between the employee’s exercise of FMLA rights

and her termination, the employee must prove that an employer’s retaliatory motive played a part

in the adverse employment action.” Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006)

(citation and quotation marks omitted). The requisite causal link may be established by temporal

proximity (although “[t]he mere coincidence of timing . . . is rarely sufficient to establish the

causation element”); “evidence of the employer’s discriminatory comments,” including comments

by others on which the ultimate decisionmaker relies in deciding to terminate an employee, for

instance; or evidence of “escalating adverse and retaliatory action” against an employee after she

takes FMLA leave. Id. at 866 (citations and quotation marks omitted).

There is no evidence that Plaintiff’s circumstances were similar to those of the other older individuals to

whom Plaintiff refers; no evidence of the circumstances leading to the termination of their employment,

including any reason given for their being “laid off”; and no evidence of the identity of the decisionmaker

as to the other employees’ termination.

Here, the temporal connection – three months between when Plaintiff first took FMLA

leave on September 4, 2020, and her termination on December 21, 2020 – is not sufficient on its

own to raise any inference of retaliatory motive to survive summary judgment. See Ebersole v.

Novo Nordisk, Inc., 758 F.3d 917, 925 (8th Cir. 2014) (recognizing that “[a]lthough we have not

drawn a definitive line, we have determined that a one-month or two-month lag is too long absent

other evidence” for “temporal proximity . . . to establish the causal connection without other

evidence of discriminatory animus”). Moreover, it is undisputed that Defendant’s “practice” is

that “[w]hen a person has not returned from leave, and there is no . . . date for them returning from

leave, their FMLA leave is exhausted, they are put on COBRA.” Plaintiff does not dispute that

this is Defendant’s practice, but appears to argue that Defendant did not follow this practice when

it allowed a male employee who had exhausted his FMLA leave to continue to carry benefits while

co-employees donated their “PTO time” to him.

Even assuming Plaintiff’s placement on COBRA insurance upon exhausting her FMLA

leave is an “adverse action,” Plaintiff fails to supply any evidence of retaliatory motive against her

in doing so. That another employee was allowed to continue to carry benefits by other employees

donating their PTO time, despite having exhausted his own FMLA leave, does not give rise to any

inference of retaliatory motive when it comes to the undisputed policy being applied to Plaintiff.

Plaintiff cites no caselaw and makes no substantive argument to the contrary.7

Finally, Plaintiff’s reliance on the “interactive process in the interim” does not provide the

necessary evidence of retaliatory motives, either. Nothing in the extensive communications

between the parties suggests that Plaintiff was terminated in retaliation for exercising her right to

take FMLA leave. Rather, Defendant requested documentation from Plaintiff’s treating

professionals numerous times, which were not provided in a timely manner. Plaintiff points to no

evidence in the summary judgment record that would support a reasonable inference that her

7 Further undercutting this claim, Plaintiff acknowledges in her brief that “Plaintiff was advised by

Joanna Wright that . . . ‘when [she] return[ed] to work,’ she could ‘rejoin [the] group plan without any

waiting period.’” (Doc. 40 at 48-49.) This suggests that her placement on COBRA insurance after having

exhausted her FMLA leave and having not returned to work – which Plaintiff does not dispute either – was

not retaliation for exercising her FMLA leave. Rather, allowing Plaintiff the opportunity to continue on the

same health plan through COBRA – which she accepted and was retroactive to November 11, 2020 – was

the normal function of Defendant’s policy and occurred in the normal course because she did not return to

work after exhausting her FMLA leave.

termination was in retaliation for her exercising her rights to medical leave under the FMLA.

Defendant is therefore entitled to judgment as a matter of law as to Count III.

E. Count IV – ADA disability discrimination claim

In Count IV, Plaintiff asserts a claim under the Americans with Disabilities Act. “To obtain

relief under the ADA, [Plaintiff] must show that [s]he (1) has a ‘disability’ within the meaning of

the ADA, (2) is a ‘qualified individual’ under the ADA, and (3) suffered an adverse employment

action as a result of the disability.” Fenney v. Dakota, Minn. & E. R. Co., 327 F.3d 707, 711 (8th

Cir. 2003) (citation and quotation marks omitted). Both parties appear to agree that this claim

turns on whether “Defendant failed to properly engage in the interactive process regarding

Plaintiff’s requested accommodations” (Doc. 40 at 47), or stated differently, whether Defendant

“made a good faith effort” to engage with Plaintiff in the interactive accommodation process. (Id.

at 52-53.)

“In order to determine whether an accommodation is necessary, and if so, what that

accommodation may be, the employer and employee must engage in the ‘interactive process.’”

EEOC v. Prod. Fabricators, Inc., 763 F.3d 963, 971 (8th Cir. 2014) (citation omitted). To show

that an employer failed to participate in the required interactive process, the employee must

demonstrate:

(1) the employer knew about the employee’s disability; (2) the employee requested

accommodations or assistance for his or her disability; (3) the employer did not

make a good faith effort to assist the employee in seeking accommodations; and (4)

the employee could have been reasonably accommodated but for the employer’s

lack of good faith.

Id. (citation and quotation marks omitted). Plaintiff argues that a genuine question of material fact

exists whether Defendant or Plaintiff was responsible for the breakdown in the interactive process.

Plaintiff concedes that “employers are entitled to request proper medical documentation

from a treating physician to support . . . a plaintiff’s accommodation request.” (Doc. 40 at 52.)

There is no dispute that Defendant properly requested this information from Plaintiff’s treating

providers, and that “Plaintiff tried to see that Defendant received documentation from her treating

providers.” There is similarly no dispute that despite repeated requests, Defendant did not receive

the properly requested documentation and clarification from Plaintiff’s treating providers

regarding the accommodations Plaintiff needed, particularly as to when Plaintiff could return to

work both remotely and in person. Plaintiff has failed to create a genuine question of fact whether

Defendant engaged in the interactive process in good faith. Further, there is nothing to suggest

that Defendant engaged in the interactive process in bad faith.

In general, the burden falls on the employee to determine the appropriate accommodation

and to provide information necessary to “identify the need for accommodations specific to her job

and workplace.” Mole v. Buckhorn Rubber Prods., Inc., 165 F.2d 1212, 1218 (8th Cir. 1999). In

Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996), the Court

explained that “courts should look for signs of failure to participate [in the interactive process] in

good faith or failure by one of the parties to make reasonable efforts to help the other party

determine what specific accommodations are necessary.” Id. at 1135. “A party that obstructs or

delays the interactive process is not acting in good faith”; “[a] party that fails to communicate . . .

.may also be acting in bad faith.” Id. “Where the missing information is of the type that can only

be provided by one of the parties, failure to provide the information may be the cause of the

breakdown and the party withholding the information may be found to have obstructed the

process.” Id.; see Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812 (6th Cir. 2020) (“an

employee’s failure to provide requested medical documentation supporting an accommodation

precludes a failure to accommodate claim”).

In Lundquist v. University of South Dakota Sanford School of Medicine, No. 09-4147-RAL,

2011 WL 5326074 (D.S.D. Nov. 4, 2011), the district court relied on Beck to hold that the plaintiff

was “preclude[d] . . . from claiming that [her employer] violated the ADA by failing to provide

the requested accommodation” because it was plaintiff’s own failure to complete the required

registration forms (which included a release of information) and medical documentation necessary

for the employer to consider the accommodation request. Id. at *8-9. Similarly, in Matthews v.

Bank of America, No. 4:10CV1097 JAR, 2011 WL 6884795 (E.D. Mo. Dec. 29, 2011), the district

court held that the defendant-employer was entitled to summary judgment and as a matter of law

was not liable for failure to accommodate because “the breakdown in the interactive process

occurred when Plaintiff failed to provide her medical documentation to support her request for

leave.” Id. at *6 (citing Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. 1998); Templeton v.

Neodata Servs., 162 F.3d 617, 619 (10th Cir. 1998)). In Matthews, the district court rejected the

plaintiff’s argument that it was ultimately her doctor’s failure to complete the required forms rather

than her own: “Defendant, however, is not responsible for a breakdown in communication with

Plaintiff’s doctor.” Id. (citation omitted).

Here, rather than Defendant’s “refus[al] to accept what Plaintiff’s providers were saying

about their expectations as to Plaintiff’s return date,” the undisputed facts show that Defendant

received conflicting information from Plaintiff and her treating professionals and attempted to

determine the scope and contours of Plaintiff’s requested accommodations, including extended

leave and at least initially returning to work remotely rather than in-person. For instance, after

Ms. Williams indicated that Plaintiff would need off until December 26 (after which she indicated

that Plaintiff could work remotely), Plaintiff indicated herself that she would need off until

December 31. Then, Dr. Mirza indicated that Plaintiff could return to work on March 8, 2021,

after which Defendant was unable to clarify when Plaintiff could return to work both remotely (if

earlier than March 8) and then when she could return in person (if at or after March 8). Plaintiff

then indicated that, per her treating professionals, that she could return to remote work on January

4, 2021, and potentially return to in-person work after March 8. Defendant continued to request

clarification from Dr. Mirza “confirming [Plaintiff’s] ability to return to work from home starting

January 4, 2021”; Defendant never received the documentation. Under these circumstances, it is

undisputed that there was a breakdown in the interactive process. Plaintiff has failed to raise a

genuine question of fact whether Defendant acted in bad faith, and the undisputed material facts

show instead that Defendant acted in good faith in the interactive accommodation process, and

that it was Plaintiff’s failure to provide the requested treatment information (which Plaintiff

concedes Defendant could properly request) that triggered the breakdown.

A final aspect of Plaintiff’s argument is that a genuine issue of material fact exists as to

whether Defendant engaged in the interactive process in good faith exists because “Defendant

made no attempt to allow Plaintiff to return to work, from home, on December 26 or December

31, 2020.” This argument puts the cart before the horse, however. This argument presumes that

Plaintiff in fact had a “return date” as part of her accommodation under the ADA. But the issue

here is not the contours or application of an appropriate accommodation for Plaintiff’s disability,

but rather the antecedent process of determining what accommodation would be applied. The

undisputed facts indicate that Plaintiff’s failure to provide the requested information hampered the

interactive process such that the parties were unable to resolve the initial question of what

accommodation could or would be appropriate. Plaintiff’s argument thus is without merit as the

undisputed facts show that Defendant is not liable for failing to accommodate Plaintiff’s disability

as a matter of law. Defendant is entitled to judgment as a matter of law as to Count IV.

F. Count V – ADA associational discrimination claim

Finally, in Count V, Plaintiff asserts a claim for associational discrimination under the

ADA based on both the “termination of her health insurance” in November 2020 and ultimately

the termination of her employment in December 2020 as unlawfully “motivated by Plaintiff’s

association with her disabled husband.” (Doc. 3 at 16, ¶¶ 110-11.) Defendant argues it is entitled

to summary judgment because Plaintiff did not properly exhaust this claim.

To bring a claim under the ADA, a plaintiff must first file a complaint with the EEOC.

Sellers v. Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015). “Each incident of discrimination and

each retaliatory adverse employment decision constitutes a separate actionable unlawful

employment practice and must be individually addressed before the EEOC.” Voss v. Housing

Auth. of the City of Magnolia, Ark., 917 F.3d 618, 623 (8th Cir. 2019) (citation and quotation

marks omitted). At the same time, “[a] plaintiff will be deemed to have exhausted administrative

remedies as to allegations contained in a judicial complaint that are like or reasonably related to

the substance of charges timely brought before the EEOC.” Lindeman v. Saint Luke’s Hosp. of

Kansas City, 899 F.3d 603, 608 (8th Cir. 2018) (citation and quotation marks omitted.)

Plaintiff argues that because her charge of discrimination checked the box for “disability”

discrimination and that the substantive portion refers to her husband being disabled, that her

associational discrimination claim should be deemed exhausted. The critical question here is

whether the associational discrimination claim asserted in Count V is “like or reasonably related

to the administrative charge[]” Plaintiff brought, i.e., specifically asserting claims based on sex,

disability, and age discrimination regarding return to in-person work, FMLA leave, the interactive

accommodations process, and ultimately her termination. Weatherly v. Ford Motor Co., 994 F.3d

940, 944 (8th Cir. 2021) (citation and quotation marks omitted). As the Eighth Circuit explained

in Weatherly: “The key is that the scope of a judicial complaint can be no broader than the scope

of the EEOC investigation that could reasonably be expected to grow out of the charge in the

EEOC complaint.” Id. at 945 (citation and quotation marks omitted).

Although it is close, the Court is not persuaded that Plaintiff properly exhausted the

associational discrimination claim she asserts here. Plaintiff did refer generally to her husband’s

disability in the body of her complaint, and she did check the box for “disability” discrimination.

At the same time, however, nothing in the substance of her administrative charge or any allegation

therein suggests any alleged action or adverse employment action was related in any way to her

husband’s disability. The only reference to her husband’s disability and the underlying

circumstances is that he was at a high risk for complications should he contract COVID-19,

contributing to Plaintiff’s own disability as a result of COVID and fear about in-person work, etc.

Plaintiff indicated in her administrative charge only that she experienced discrimination

“based on my disability status as well as my age and gender.” In her brief, Plaintiff suggests that

the administrative complaint could be liberally construed to imply she took FMLA leave in relation

to her husband’s stated disability. The Court is not persuaded, however. The portion of Plaintiff’s

administrative charge to which Plaintiff refers in support of this argument includes (in full) as

follows:

On or about September 4, 2020 I was diagnosed with Major Depression, Panic

Disorder and Severe Anxiety. A major factor causing these disabilities was the fact

that I was forced to work in a shared office space when I had a husband who was

considered high risk for COVID complications. As a result of the diagnosis of

these disabilities, I took FMLA leave. During that time, I underwent intensive

outpatient therapy, which was essentially all day, every weekday. I also continued

to see a counselor and medical doctor.

(Doc. 3-1 at 1 (emphasis added).) Though the Court should “construe administrative charges

liberally, [the Court] will not invent, ex nihilo, a claim that was not made before the relevant

agency.” Weatherly, 994 F.3d at 944 (citation omitted). The Court agrees with Defendant:

Plaintiff failed to properly exhaust the claim for associational discrimination, and therefore

Defendant is entitled to judgment as a matter of law as to Count V.

IV. Conclusion

Therefore, Defendant’s motion for summary judgment (Doc. 36) is GRANTED.

IT IS SO ORDERED.

s/ Roseann A. Ketchmark

ROSEANN A. KETCHMARK, JUDGE

UNITED STATES DISTRICT COURT

DATED: February 23, 2023