Suboh v. Abacus Corporation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TRACY SUBOH,

:

Plaintiff,

Case No. 2:20-cv-6295

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

ABACUS CORPORATION,

:

Defendant.

OPINION AND ORDER

Plaintiff Tracy Suboh brings this action against her former employer,

Defendant Abacus Corporation, alleging violations of the Americans with

Disabilities Act (“ADA”), Family Medical Leave Act (“FMLA”), and Ohio law.

(Compl., ECF No. 1.) Abacus has filed for summary judgment on all claims. (Mot.,

ECF No. 21.) Ms. Suboh responded (Resp., ECF No. 25), and Abacus replied (Reply,

ECF No. 28). At the Court’s request, the parties filed supplemental briefing. (See

ECF Nos. 32, 33.) Because a reasonable jury could find in favor of Ms. Suboh,

Abacus’s Motion for Summary Judgment is DENIED.

I. BACKGROUND

A. Ms. Suboh began working for Abacus in 2016.

The facts in this case are largely undisputed. Ms. Suboh started working for

Abacus, a staffing agency, in April 2016. (Suboh Dep., ECF No. 21-2, PAGEID

# 501. See also Brady Aff., ECF No. 21-1, ¶ 2.) Her first role with the company was

as District Manager in the Columbus, Ohio branch office. (Id., 12:18, 13:12–13.) As

District Manager, Ms. Suboh was responsible for the day-to-day operations of the

branch, including marketing, sales, operations, customer service, recruitment, and

overseeing on-site placements. (Id., 12:18–14:13.) The role was “nonstop” and

required Ms. Suboh to “[wear] many hats.” (Id., 13:2–9.)

B. In 2019, Ms. Suboh struggled with serious psychiatric health

concerns. She was approved for four weeks of FMLA leave.

Ms. Suboh began experiencing significant psychiatric health challenges in

2019. (Id., 20:21–25.) She was hospitalized for five days that June. (Id., 21:14–16.)

Ms. Suboh used vacation time to cover her absence, and returned to the office

immediately on release. (Id., 22:1–4.) Four months later, Ms. Suboh was

hospitalized again. (Id., 24:5–7.) Her inpatient stay was followed by an intensive

outpatient program (“IOP”). (Id., 24:8–23.) The treatment took Ms. Suboh away

from the office for four weeks. (Id.) Abacus approved Ms. Suboh’s application for

FMLA leave to cover that time. (Id.)

When Ms. Suboh returned to the office in November 2019, she was promoted

to Regional Director of Operations. (Brady Aff., ¶ 5.) As Regional Director, Ms.

Suboh was responsible for the Columbus market, as well as Abacus’s expansion into

Indiana and Chicago. (Suboh Dep., 27:24–28:12.)

C. In 2020, Ms. Suboh was approved to use her remaining eight

weeks of FMLA leave. She then requested three additional

weeks of non-FMLA medical leave.

Six months after her promotion, Ms. Suboh once again required

hospitalization. (Id., 29:3–6.) She sent Abacus a certification from her treating

psychiatrist, Jeffrey T. Pearch, D.O., dated June 8, 2020. (Id., PAGEID # 516–19.)

Dr. Pearch noted that Ms. Suboh had been hospitalized from May 21 to May 28, and

was being referred for participation in a six-to-eight week IOP. (Id., PAGEID # 517.)

He further stated that, as of June 8, Ms. Suboh was “unable to perform any of her

job functions.” (Id.) He explained:

The patient is experiencing an acute exacerbation of depression and

anxiety symptoms including symptoms of helplessness, a recent

attempt at self harm, impairment in ability to concentrate, and

heightened anxiety with panic attacks. An increased level of care such

as IOP is warranted given the severity of these symptoms which

persist despite recent inpatient treatment.

(Id.) The certification asked Dr. Pearch to “estimate the beginning and ending dates

for the period of incapacity,” to which he responded:

5/21/20 – 8/10/20 → (estimated return to work date following

completion of IOP)

(Id., PAGEID # 518.) Based on her conversations with Dr. Pearch, Ms. Suboh also

had the “expectation . . . that [she] would return to work after the IOP was

completed[,]” but understood that the August 10 return date was contingent,

“because [Dr. Pearch] wanted to evaluate [her] progress.” (Id., 37:10–14, 75:7–8.)

On June 29, 2020, Abacus HR Business Partner Sabrina Rios sent Ms. Suboh

an email, with the following letter attached:

Dear Tracy:

In response to your request for a leave of absence for your own serious

health condition via FMLA, please be advised that your leave is

approved effective May 21, 2020 and will expire the week of July

20, 2020.

Please note the following:

• For the weeks ending October 18, 2019 – November 15, 2019 you

previously utilized four (4) weeks of leave under FMLA.

• If you currently have insurance through Abacus, you are

responsible for your portion of the premiums during your

absence.

o If this is applicable to you, our Accounting team will

invoice you separately.

Because your FMLA leave was the result of your own serious health

condition, you must provide certification from your health care

provider that specifies the date you are able to return to your job and

your ability to perform the essential functions of your job with or

without reasonable accommodation.

If you have any questions, please let me know.

(Id., PAGEID # 515. See also ECF No. 25-1.)

Ms. Suboh responded, copying Abacus COO, Mike Brady, and VP of

Operations, Scott Ellison, among others, on July 6:

Thank you Sabrina,

I’ve spoken with my doctors and they still feel August 10th is when I

should return. How does this effect [sic] my job?

Best,

Tracy

(ECF No. 25-1. See also Brady Dep., ECF No. 21-3, 7:1, 25:18–19.) Within ten

minutes, Mr. Brady emailed Ms. Rios:

We will coordinate reply tomorrow.

(ECF No. 25-1.) But Abacus never sent a reply to Ms. Suboh’s email. (Suboh Dep.,

11:1–5.)

D. Ms. Suboh was terminated before returning to work.

Two weeks later, on July 21, Mr. Brady sent an email to Mr. Ellison, Ms.

Rios, Christopher Price (who filled in for Ms. Suboh during her leave), and Michele

Massaro (who was “very involved” in Abacus operations). (July 21 Email, ECF No.

25-2. See also Brady Dep., 25:18–24.) The message, marked with “High” importance,

bears the subject line:

Tracy Suboh – Alicia Kern – Columbus

(July 21 Email.) It reads:

Tracy Suboh has exhausted her job protection status under the FMLA

and we are prepared to move forward an [sic] install a new market

leader, Alicia Kern.

We need to be very coordinated and organized in how we handle this.

I will communicate with Tracy Suboh to advise her that her job

protection has expired and that we have filled her role. I would like to

be the single point of contact with her going forward. If she reaches out

to you, certainly be kind and gracious, but refer her to me.

That said, I am certain that within 2 seconds of our call, she will be on

the phone with Dolores and possibly others in the branch. Therefore,

we will need to be in communication with them, not to share the

private personnel information, but to assure them of continuity in

operations and new leadership. Also, they can have any personal

relationship with Tracy that we [sic] choose to however, no work

information should be shared by Dolores or others with Tracy.

There may be some resistance to new leadership; the branch may give

her the hard way to go. We cannot allow that if detected.

Chris, you have been interim market leader; need your thoughts.

Michele/Scott, need your input on timing too. I would like to tie off

with Tracy as soon as reasonable but not until we get our ducks in a

row!

(Id.)

Mr. Brady reached Ms. Suboh via phone on July 27 and “[told her] that

[Abacus] had decided that they needed to move on.” (Suboh Dep., 77:6–8.)

Ms. Suboh attempted to salvage her relationship with Abacus. She reached

out to Ms. Massaro and Mr. Ellison, “begging them to reconsider their decision.”

(Id., 77:14–17.) They both reiterated that it was time “to move on.” (Id., 78:1–5,

80:15–17.) She also exchanged text messages with Mr. Brady, asking:

Can I just have a new role in the company? I work so well onsite people

love me and maybe I could be a trainer? . . . I would enjoy being a

trainer for our onsite accounts.

(Id., PAGEID # 493.) Mr. Brady responded:

We can cross that bridge down the line. Keep working on yourself,

when you get to a point where you are released from care, we can talk

it out

(Id.)

Ms. Suboh was cleared to return to work without restrictions on August 31,

2020. (Id., PAGEID # 513.)

E. Ms. Suboh filed suit.

Ms. Suboh filed an EEOC charge and ultimately received a Right to Sue

letter. (ECF No. 1-1.) She filed her Complaint shortly thereafter. (Compl., ECF No.

1.) Ms. Suboh asserts seven claims against Abacus, including:

Count I Disability Discrimination (Ohio Rev. Code § 4112.02)

Count II Disability Discrimination (ADA)

Count III Retaliation (Ohio Rev. Code § 4112.02)

Count IV Retaliation (ADA)

Count V Failure to Accommodate (ADA)

Count VI Failure to Accommodate (Ohio Rev. Code § 4112.02)

Count VII Retaliation (FMLA)

(Id.) Abacus now moves for summary judgment. (Mot.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when “there is no genuine dispute as to

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

R. Civ. P. 56(a). The movant has the burden of establishing there are no genuine

issues of material fact, which may be achieved by demonstrating the nonmoving

party lacks evidence to support an essential element of its claim. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,

12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving

party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.

56). When evaluating a motion for summary judgment, the evidence must be viewed

in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970).

A genuine issue exists if the nonmoving party can present “significant

probative evidence” to show that “there is [more than] some metaphysical doubt as

to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.

1993). In other words, “the evidence is such that a reasonable jury could return a

verdict for the non-moving party.” Anderson, 477 U.S. at 248; see also Matsushita

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

summary judgment is appropriate when the evidence could not lead the trier of fact

to find for the non-moving party).

III. ANALYSIS

The Sixth Circuit recently pointed out why cases like Ms. Suboh’s are so

important:

Nearly one in every five Americans has a disability. MATTHEW W.

BRAULT, U.S. CENSUS BUREAU, AMERICANS WITH

DISABILITIES: 2010 4 (2012). Yet at the time of the last census

report, a mere 41% of people with disabilities between the ages of 21

and 64 were employed. Id. Although “physical or mental disabilities in

no way diminish a person’s right to fully participate in all aspects of

society,” 42 U.S.C. § 12101(a)(1), these numbers reflect the harsh

reality that “people with disabilities, as a group, occupy an inferior

status in our society, and are severely disadvantaged . . .

economically,” id. § 12101(a)(6).

Hostettler v. Coll. of Wooster, 895 F.3d 844, 848 (6th Cir. 2018).

The court went on to explain that

Congress passed the Americans with Disabilities Act in 1990 to “assure

equality of opportunity, full participation, independent living, and

economic self-sufficiency” for individuals with disabilities. 42 U.S.C.

§ 12101(a)(8) (pre-2008 amendments). To that end, the law broadly

prohibits “discriminat[ion] against a qualified individual on the basis

of disability” as it applies to aspects of employment including hiring,

advancement, and firing. 42 U.S.C. § 12112(a).

Id. “The Ohio anti-discrimination law mirrors the ADA, so [the Sixth Circuit]

applies the legal standard under the ADA to claims brought under both laws.” King

v. Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 560 (6th Cir. 2022) (collecting

cases). See also Ohio Rev. Code § 4112.02(A). Accordingly, Ms. Suboh’s federal and

state claims are analyzed together. For ease of analysis, the claims are addressed

out of order.

A. Failure to Accommodate (Counts V, VI)

The Court begins with Ms. Suboh’s claim that Abacus failed to accommodate

her disability, in violation of the ADA and Ohio law. (See Compl., ¶¶ 61–84.)

Under the ADA, an employer unlawfully discriminates against an employee

when it does not make “reasonable accommodations” to the employee’s known

disability—unless the accommodation would be an “undue hardship” on the

employer. 42 U.S.C. § 12112(b)(5)(A). See also Jakubowski v. Christ Hosp. Inc., 627

F.3d 195, 201 (6th Cir. 2010). “[C]laims premised upon an employer’s failure to offer

a reasonable accommodation necessarily involve direct evidence (the failure to

accommodate) of discrimination.” Blanchet v. Charter Commc’ns, LLC, 27 F.4th

1221, 1227 (6th Cir. 2022) (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862,

868–69 (6th Cir. 2007)). Accordingly, the Court “jettison[s] the familiar” burden-

shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and instead applies a different framework. Kleiber, 485 F.3d at 869. First,

Ms. Suboh must make a prima facie showing that Abacus failed to accommodate her

known disability and that her proposed accommodation was reasonable. If she does,

“the burden shifts to [Abacus] to demonstrate that [the] particular accommodation

would impose an undue hardship[.]” Johnson v. Cleveland City Sch. Dist., 443 F.

App’x 974, 983 (6th Cir. 2011).

1. A reasonable jury could find that Abacus discriminated

against Ms. Suboh by failing to provide reasonable

accommodation for her disability.

To make out a prima facie case for failure to accommodate,

a plaintiff must show that (1) she was disabled within the meaning of

the statute; (2) she was otherwise qualified for her position, with or

without reasonable accommodation; (3) the defendant knew or had

reason to know about her disability; (4) she requested an

accommodation; and (5) the defendant failed to provide the necessary

accommodation.

King, 30 F.4th at 560 (citation and internal quotation marks omitted) (cleaned up).

“[T]he burden of making out a prima facie case is not an onerous one.” Hostettler,

895 F.3d at 855. The only element in dispute here is whether Ms. Suboh was

otherwise qualified for her position, with or without reasonable accommodation.

(See generally Mot.) Ms. Suboh contends that her request for three additional weeks

of medical leave was a reasonable accommodation, with which she would have been

able to return to Abacus and perform the essential functions of her job. (Resp., 13,

16.) On this record, a reasonable jury could agree.

Reasonable accommodation. The Sixth Circuit has long held that a period of

medical leave can be a reasonable accommodation. Cehrs v. Ne. Ohio Alzheimer’s

Rsch. Ctr., 155 F.3d 775, 782 (6th Cir. 1998). When an employee requests medical

leave as an accommodation, the Sixth Circuit “focus[es] on the reasonableness of the

request.” King, 27 F.4th at 562. A plaintiff “bears the burden of showing that an

‘accommodation seems reasonable on its face.’” Blanchet, 27 F.4th at 1229 (quoting

U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). “Determining the

reasonableness of a proposed accommodation is a question of fact.” Id. at 1229–30

(quoting Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998)). In

assessing the reasonableness of a request for medical leave, courts in this Circuit

consider:

(1) the amount of leave sought; (2) whether the requested leave

generally complies with the employer’s leave policies; and (3) the

nature of the employee’s prognosis, treatment, and likelihood of

recovery.

King, 27 F.4th at 562 (collecting cases).

Applied here, the King factors weigh in favor of finding that Ms. Suboh’s

request was reasonable. As to the first and third factors: Ms. Suboh requested

unpaid medical leave to complete a six-to-eight week IOP. Her treating psychiatrist

estimated that she would need until August 10, 2020—just three additional

weeks—to recover from the “acute exacerbation” of her condition. As to the second,

although the record suggests that Abacus has leave policies (see ECF No. 21-2,

PAGEID # 484), there is no clear indication of whether the requested leave would

comply with, or fall outside of, any such policies.

Otherwise qualified. “To show that she is otherwise qualified for a

position . . . an employee must show that she can perform the essential functions of

a job with or without an accommodation.” Hostettler, 895 F.3d at 854. “[E]ssential

functions are the core job duties, not the marginal ones.” Id. (citing 29 C.F.R.

§ 1630.2(n)(1)).

Ms. Suboh had been employed with Abacus for several years, during which

time she received raises and promotions, and “no write-ups.” (See Suboh Dep.,

17:16–17.) She testified:

[Ms. Suboh]: . . . [O]nce I had gotten out of the hospital, I was

prepared to go in and really make a difference and turn it around in

the office.

[Attorney]: When you say out of the hospital, which time was that?

[Ms. Suboh]: That was the last time – that was that last time in July

when I was terminated.

[Attorney]: Okay.

[Ms. Suboh]: I was prepared to – I had the mental therapy that I

needed and I felt that I was capable of going in and just really

changing things, you know, righting the ship.

(Id., 19:10–22.) Indeed, she “was actually eager to get back.” (Id., 46:15.) After being

terminated, Ms. Suboh secured a position as an Operations Manager with a

competitor staffing agency. (Id., 50:21–51:3.) Although Ms. Suboh ultimately

resigned that position, it was not for lack of competence. (Id., 53:8–13.)

Abacus puts forward several arguments why Ms. Suboh fails to make a prima

facie showing: first, that medical leave exempts Ms. Suboh from in-person

attendance, which was an essential function of her job; second, that Ms. Suboh

requested an indefinite period of medical leave; third, that the requested leave

would not have permitted her to return to work; and fourth, that the requested

leave imposed an undue hardship on Abacus. (See generally, Mot.) The first three

arguments fail, and Abacus fails to carry its burden on the fourth.

In-person attendance. Abacus first argues that Ms. Suboh’s requested

accommodation (three weeks of medical leave) is not a reasonable one because it

exempts her from an essential function of her job—in-person attendance. (Mot., 15.)

“In failure-to-accommodate claims where the employee requests an accommodation

that exempts her from an essential function, the essential function and reasonable

accommodation analyses run together. One conclusion (the function is essential)

leads to the other (the accommodation is not reasonable).” EEOC v. Ford Motor Co.,

782 F.3d 753, 763 (6th Cir. 2015) (en banc) (internal quotations, citation, and

alteration omitted).

Abacus relies on EEOC v. Ford Motor Co., in which the Sixth Circuit

identified a “general rule that, with few exceptions, an employee who does not come

to work cannot perform any of his job functions, essential or otherwise.” Id. at 761

(internal quotation and citation omitted). The employee at issue in Ford Motor

worked in a highly interactive role as a steel buyer, but suffered from a medical

condition that made regular attendance in the office difficult. She requested the

ability to telecommute up to four days each week. Ford had previously tried to

accommodate her disability with “telecommuting trials and specialized plans to

improve her attendance[,]” none of which were successful. Id. at 766. The proposed

“ad hoc telecommuting schedule” was a bridge too far for Ford, and for the court. Id.

Abacus sees itself as the Ford Motor of this case. In its view, in-person

attendance was an essential function of Ms. Suboh’s job—her requested absence

exempted her from that essential function and was, ipso facto, unreasonable. But

more recent Sixth Circuit cases, with more analogous facts, make clear that Ford

Motor’s analysis is not a perfect fit. See, e.g., King, 30 F.4th at 561–562 (concluding

that Ford Motor “cannot automatically apply where medical leave would enable the

employee to return to work and perform the essential job duties”); Hostettler, 895

F.3d at 857 (concluding that “full-time presence at work is not an essential function

of a job simply because an employer says that it is”). In Blanchet v. Charter

Communications, LLC, the Sixth Circuit discussed a failure-to-accommodate claim

brought by a high-performing employee whose postpartum depression prevented an

on-time return from parental leave, causing her to request additional time off. 27

F.4th at 1228. Charter argued that Ms. Blanchet was not otherwise qualified

because she “could not perform any of her essential job functions ‘as of the date of

her termination, including attending work.’” Id. at 1229. Rejecting the argument,

the court explained:

When an employee’s proposed accommodation is medical leave,

examining her qualifications on the date of her termination does not

indicate whether she is otherwise qualified with an accommodation.

Employees requesting medical leave often cannot perform their jobs

when they request leave, and medical leave allows them time to

recover from illnesses or medical procedures. To accept Charter’s

supposed rule, an employee requesting medical leave could always be

terminated if she were unable to work at the time of her request. But

that cannot be the case because we have held that “medical leave can

constitute a reasonable accommodation under the ADA.” Williams v.

AT&T Mobility Servs. LLC, 847 F.3d 384, 394 (6th Cir. 2017). We must

therefore determine whether Blanchet would be “otherwise qualified”

to perform her essential job functions with her proposed

accommodation, in other words, when she returned to work.

Id. The court distinguished Ford Motor, noting that Ms. Blanchet “was not

requesting an accommodation that would permanently remove attendance as a

requirement for her position, by, for example, allowing her to telework or work part-

time.” Id. Instead, she sought a “temporary accommodation in the hopes that she

could fully fulfill the attendance requirement once her medical leave was over.” Id.

The same distinction applies here.

Estimated return-to-work date. Abacus next argues that Ms. Suboh’s leave

request was unreasonable because it was “for an indeterminate duration.” (Mot., 8.)

“[W]here an employer has already provided an employee with a lengthy period of

medical leave, an extension to that leave can be a reasonable accommodation only

when its duration is definite.” Maat v. Cnty. Of Ottawa, 657 F. App’x 404, 412 (6th

Cir. 2016). The “relevant inquiry” is whether the requested medical leave has “a

certain or credibly proven end,” id. (quoting Aston v. Tapco Int’l Corp., 631 F. App’x

292, 298 (6th Cir. 2015))—in other words, whether the employee has shown a “clear

prospect[] of recovery.” Williams, 847 F.3d at 394 (quoting Walsh v. United Parcel

Serv., 201 F.3d 718. 727 (6th Cir. 2000)).

Abacus maintains that Ms. Suboh’s request did not pass muster because Dr.

Pearch provided only “an estimated return-to-work date[,]” which was contingent on

her successful completion of IOP. (Mot., 9.) While “[a] physician’s estimate of a

return date alone does not necessarily indicate a clear prospect for recovery[,]”

Williams, 847 F.3d at 394, Ms. Suboh had more than just an estimated date—she

had a plan for, and a path to, recovery: a six-to-eight week IOP overseen by her

treating psychiatrist.1 See Blanchet, 27 F.4th at 1231 (contrasting Ms. Blanchet’s

prospect of recovery with the plaintiffs’ in Williams and Walsh by noting that she

had a positive employment history and was in active treatment).

Sufficient to enable return. Abacus further argues that Ms. Suboh’s failure-to-

accommodate claim must fail because the accommodation she requested would not

have enabled her return. (Mot., 11.) Logic dictates, and case law confirms, that a

1 Abacus tries to further support its position by noting that Ms. Suboh was

still symptomatic at her August 10, 2020 appointment with Dr. Pearch and was not

medically released to work until August 31. (Mot., 10.) However, “a reasonable jury

could find not-at-all surprising that an unexpected termination would derail [Ms.

Suboh’s] recovery from mental illness, requiring her to take more time off from

work.” Blanchet, 27 F.4th at 1229.

proposed accommodation is not a reasonable one if it “would [not] allow [the

employee] to perform the essential functions of her job.” Williams, 847 F.3d at 393

(citing Ford Motor, 782 F.3d at 763). Abacus cites Ms. Suboh’s deposition testimony

for the proposition that, in addition to three weeks of medical leave, she needed

accommodations including terminating one employee, hiring three additional

employees, and reducing her job duties. (Mot., 12.) However, in context and drawing

all reasonable inferences in Ms. Suboh’s favor, the cited deposition testimony does

not identify disability accommodations so much as it identifies what Ms. Suboh felt

was necessary to ‘right the ship.’ She sought a more clearly defined role, the ability

to prioritize major projects, a deeper bench of recruiters, a salesperson with local

market ties, additional education and training for staff, and more direction from

leadership on “how to grow the business[.]” (See Suboh Dep., 57:5–61:25.) These are

not requests for accommodations—they are a manager’s wish-list. (See also Suboh

Dep., 74:23–75:8.) Abacus’s argument, therefore, fails.

Undue hardship. Finally, Abacus argues that Ms. Suboh’s requested three

weeks of medical leave imposed an undue hardship on the business. (Mot., 13.) The

ADA defines “undue hardship” to mean “an action requiring significant difficulty or

expense, when considered in light of” the following factors:

(i) the nature and cost of the accommodation needed . . . ;

(ii) the overall financial resources of the facility or facilities involved in

the provision of the reasonable accommodation; the number of persons

employed at such facility; the effect on expenses and resources, or the

impact otherwise of such accommodation upon the operation of the

facility;

(iii) the overall financial resources of the covered entity; the overall

size of the business of a covered entity with respect to the number of its

employees; the number, type, and location of its facilities; and

(iv) the type of operation or operations of the covered entity, including

the composition, structure, and functions of the workforce of such

entity; the geographic separateness, administrative, or fiscal

relationship of the facility or facilities in question to the covered entity.

42 U.S.C. § 12111(10).

Abacus maintains that “after she started FMLA leave in May of 2020, Ms.

Suboh’s branches declined in performance” and that the “lack of leadership in her

absence . . . affected productivity.” (Brady Decl., ¶¶ 10–11.) The record contains no

more specific information or evidence going to any of the four factors. Such vague

and conclusory assertions are an insufficient basis on which to conclude that no

genuine issue of material fact exists. Cf. King, 30 F.4th at 568 (noting that the

employer bears the burden of establishing undue hardship and finding that the

defendant failed to do so).

2. A reasonable jury could find that Abacus failed to engage

in the interactive process.

Ms. Suboh’s failure-to-accommodate claim also alleges that Abacus failed to

engage in the interactive process required by the ADA. (See, e.g., Compl., ¶ 70.)

“Once an employee requests an accommodation, the employer has a duty to engage

in an interactive process” through which the parties “‘identify the precise

limitations resulting from the disability and potential reasonable accommodations

that could overcome those limitations.’” Hostettler, 895 F.3d at 857 (quoting Mosby-

Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595, 605–06 (6th Cir.

2018)). See also 29 C.F.R. § 1630.2(o)(3). The interactive process requires an

employer to engage in “an individualized inquiry to determine whether a reasonable

accommodation can be made.” Hostettler, 895 F.3d at 857 (internal quotation and

citation omitted). “Both parties must participate in this process and do so in good

faith.” Jakubowski, 627 F.3d at 202 (citing Kleiber, 485 F.3d at 871). “An employer

has sufficiently acted in good faith when it readily meets with the employee,

discusses any reasonable accommodations, and suggests other possible positions for

the [employee].” Id. at 203.

Ms. Suboh first provided Dr. Pearch’s June 8 medical certification requesting

an additional three weeks of medical leave, and later confirmed to Ms. Rios that her

doctors’ recommendation had not changed. She asked how the additional time out of

the office would affect her job and was met with radio silence—that is, until she

received Mr. Brady’s July 27 phone call terminating her employment. “An employer

may not stymie the interactive process of identifying a reasonable accommodation

for an employee’s disability by preemptively terminating the employee before an

accommodation can be considered or recommended.” King, 30 F.4th at 567 (quoting

Cutrera v. La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)). But a reasonable jury

could find that is exactly what happened here.

Abacus’s Motion for Summary Judge on Counts V and VI is DENIED.

B. Disability Discrimination (Counts I, II)

Ms. Suboh further alleges that Abacus discriminated against her on the basis

of her disability when it terminated her employment. (Compl., ¶¶ 25–48.) The Court

analyzes such claims under the McDonnell Douglas burden-shifting framework.2

Williams, 847 F.3d at 395. Under McDonnell Douglas, a plaintiff must first make a

prima facie case of discrimination by showing that: (1) she has a disability; (2) she is

otherwise qualified for the position, with or without reasonable accommodation;

(3) she suffered an adverse employment decision; (4) her employer knew or had

reason to know of the disability; and (5) she was replaced or her position remained

open. Id. (quoting Whitfield v. Tenn., 639 F.3d 253, 259 (6th Cir. 2011)). “[T]he

burden then shifts to the employer to demonstrate that there was a legitimate,

nondiscriminatory reason for the adverse employment action.” Id. On such

demonstration, the burden shifts back to the plaintiff, who “must then show that

the reason given by the employer was actually a pretext designed to mask unlawful

discrimination.” Id.

Here, too, the only disputed element of the prima facie case is whether Ms.

Suboh was otherwise qualified for the position, with or without reasonable

2 Discrimination claims supported by direct evidence and indirect evidence

are analyzed under different tests. See Hostettler, 895 F.3d at 852–53. ADA “claims

premised upon an employer’s failure to offer a reasonable accommodation

necessarily involve direct evidence (the failure to accommodate) of discrimination.”

Kleiber, 485 F.3d at 829. The Sixth Circuit has applied the direct evidence test to

ADA discrimination claims that are “based on [the employer’s] failure to

accommodate,” even though they were not titled or pled as “failure to accommodate”

claims. Blanchet, 27 F.4th at 1227. Here, Ms. Suboh asserts both failure to

accommodate and general disability discrimination claims. The Court construes

Counts I and II as alleging discriminatory discharge proved by indirect evidence

and analyzes it as such. (See Resp., 9 (utilizing the McDonnell Douglas burden-

shifting test to argue that “the facts give rise to an inference of discrimination”)).

Counts V and VI, for failure to accommodate, are analyzed, supra, using the direct

evidence test.

accommodation. (See Mot.) For the reasons set forth in Section III.A., supra, the

Court finds that Ms. Suboh has satisfied her burden. The Court turns next to

Abacus’s stated reason for terminating Ms. Suboh’s employment—that she was

unavailable to return to work after the end of her FMLA leave. Though the Court

seriously doubts that this reason passes for nondiscriminatory,3 the question’s

importance fades because Ms. Suboh raises a genuine issue of material fact as to

whether the reason is pretextual.

To establish pretext, a plaintiff must show that the employer’s proffered

reason “(1) had no basis in fact; (2) did not actually motivate the adverse action; or

(3) was insufficient to warrant her removal.” Wyatt v. Nissan N. Am., Inc., 999 F.3d

400, 422 (6th Cir. 2021). “Although a plaintiff cannot rest solely on temporal

proximity to establish pretext, suspicious timing is a strong indicator of pretext

when accompanied by some other, independent evidence.” Id. (internal quotation

and citation omitted). Here, the record reveals a glaring inconsistency in the

circumstances leading to Ms. Suboh’s termination which, in combination with the

“suspicious timing,” requires presentation to a jury. See Tinker v. Sears, Roebuck &

Co., 127 F.3d 519, 523 (6th Cir. 1997) (concluding that inconsistent statements from

individuals involved in plaintiff’s termination created a question of material fact).

3 Ms. Suboh was unavailable to present for work on July 21, 2020, because of

her disability. Cf., Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419,

433 (6th Cir. 2014) (concluding that the plaintiff’s “disability was a ‘but-for’cause of

his termination” because he “would not have been terminated had he not asked

about taking leave to treat his medical conditions”).

Ms. Suboh was told that her FMLA leave would run on July 20, 2020. By July

21, Abacus was “prepared to move forward an[d] install a new market leader, Alicia

Kern.” (July 21 Email.) Mr. Brady’s email announcing the move makes clear that

Ms. Kern was intended to “fill[ Ms. Suboh’s] role.” (Id.) Mr. Brady stated his

intention “to tie off with Tracy as soon as reasonable[.]” (Id.) But, in contrast to the

resolute language of the July 21 Email, Mr. Brady testified in deposition that Ms.

Suboh’s termination “wasn’t a foregone conclusion,” and, “had Tracy been able to

return to work, [Ms. Kern] would have reported to her and worked for her.” (Brady

Dep., 16:19–22, 21:19–21.) The apparent discord can be resolved only with a

credibility determination—and that must be done by a jury.

Abacus’s Motion for Summary Judgment on Count I and II is DENIED.

C. Retaliation (Counts III, IV, and VII)

Finally, Ms. Suboh alleges that Abacus retaliated against her in violation of

the FMLA, ADA, and Ohio law. (Compl., ¶¶ 49–60, 85–90.) Retaliation claims based

on indirect evidence are also analyzed under the McDonnell Douglas burden-

shifting framework. Ford Motor, 782 F.3d at 767. “The prima facie case for

retaliation under [the ADA and the FMLA] is practically identical.” Wyatt, 999 F.3d

at 419. A plaintiff must show that

(1) [she] engaged in a protected activity, (2) the employer knew of the

exercise of the protected right, (3) the employer took adverse

employment action against the plaintiff . . ., and (4) there was a causal

connection between the protected activity and the adverse employment

action . . . .

Id. (collecting cases).

Abacus first argues that Ms. Suboh fails to establish a causal connection

between the exercise of her ADA and FMLA rights and her termination. (Mot., 21.)

“[T]he plaintiff’s burden at the prima facie stage is minimal and easily met.” Wyatt,

999 F.3d at 419 (internal quotation and citation omitted). “[A]ll the plaintiff must do

is put forth some credible evidence that enables the court to deduce that there is a

causal connection between the retaliatory action and the protected activity.” Seeger

v. Cincinnati Bell. Tel. Co., LLC, 681 F.3d 274, 283 (6th Cir. 2012) (internal

quotation and citation omitted). The Sixth Circuit has found that, where the

protected activity and the adverse employment action occur “acutely near in time,”

that temporal proximity can be sufficient to establish a prima facie showing of

causation. Id. (collecting cases). See also Wyatt, 999 F.3d at 419. As applied here,

Ms. Suboh’s exercise of her ADA and FMLA rights could scarcely be more acutely

near her termination. Ms. Suboh has made her prima facie case.

Abacus next argues that its “legitimate reason” for terminating Ms. Suboh—

“her inability to return to work following the expiration of FMLA leave” —was not

pretextual. (Mot., 21.) For the same reasons as in Section III.B., supra, the Court

finds that a genuine issue of material fact exists as to whether Abacus’s stated

reason for terminating Ms. Suboh was mere pretext for unlawful retaliation.

Abacus’s Motion for Summary Judgment on Counts III, IV, and VII is

DENIED.

IV. CONCLUSION

For the reasons set forth above, Abacus’s Motion for Summary Judgment is

DENIED. A trial scheduling order will follow.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE