Veith v. Tyson Fresh Meat, Inc.

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JACQUELYN VEITH, )

)

Plaintiff, )

) NO. 3:19-cv-01065

v. ) JUDGE RICHARDSON

)

TYSON FRESH MEAT, INC., )

)

Defendant. )

)

)

AMENDED MEMORANDUM OPINION

Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. No. 24,

“Motion”), supported by an accompanying Memorandum of Law. (Doc. No. 25). Plaintiff,

Jacquelyn Veith, filed a response (Doc. No. 29, “Response”), and Defendant filed a reply. (Doc.

No. 32, “Reply”). For the reasons stated herein, Defendant’s Motion will be GRANTED in part

and DENIED in part.

BACKGROUND1

1 Unless otherwise noted, the facts and contentions referred to in this section are taken from Plaintiff's

Response to Defendant's Statement of Facts (Doc. No. 30) and Defendant's Response to Plaintiff's

Additional Statement of Material Facts. (Doc. No. 33). Facts that are stated herein without qualification are

undisputed and treated as such. Alleged facts that are qualified here in some way (as for example by being

prefaced with “Plaintiff contends that”) are in dispute and are treated as such.

In its response to Plaintiff’s additional statement of material facts, Defendant argues that the Court

should “strike Plaintiff’s additional statements [of fact] and disregard them” because Plaintiff failed to

comply with Local Rule 56.01(c), which requires the statement of material facts to put each fact in a

separate, numbered paragraph. (Doc. No. 33 at 1-2). The Court presently declines to disregard Plaintiff’s

additional statement of facts due to non-compliance with the Local Rules, but Plaintiff’s counsel is

encouraged to ensure strict compliance in future filings lest this Court (or another) be less forgiving.

I. Plaintiff’s Employment with Defendant

On February 12, 2018, Defendant hired Plaintiff as a Production Supervisor on B Shift at

its plant located in Goodlettsville, Tennessee. (Doc. No. 30 at 1). Plaintiff’s responsibilities as a

Production Supervisor included meeting production schedules, achieving department and plant

objectives, and supervising 48 hourly employees who worked on her production lines. (Id.). As

part of her supervisory duties, Plaintiff was also tasked with handling disciplinary issues, vacation

and leave requests, and time and attendance for her hourly employees. (Id. at 2). Typically, B Shift

production ran from 2:00 p.m. until 11:00 p.m. (Id.). When production would end, Plaintiff was

also responsible for drafting detailed reports about her lines’ efficiencies, quality issues, and

overall performance. (Id.). This often required her to work later than 11:00 p.m. (Id. at 3). In

addition, Plaintiff was occasionally required to work six days a week, a requirement of which she

was informed when she was hired. (Id.). However, Tyson did not advertise six-day work weeks as

an essential feature of the position. (Doc. No. 33 at 2).

For most of her time with Defendant, Plaintiff reported to General Manager Molly Winkle.

(Doc. No. 30 at 3-4). But in October 2018, Plaintiff started reporting to newly promoted General

Manager, Kim Jal (“Jal”). (Id. at 4). On October 26, 2018 an incident occurred between Plaintiff

and fellow Production Supervisor Elizabeth Fournier (“Fournier”), when Plaintiff entered a

supervisor’s office where perfume was being sprayed. (Id.). Plaintiff asked for the spraying to stop,

and Fournier reportedly stated, “Quick, spray more.” (Id.) Plaintiff reported this incident to Human

Resources Manager, Scott Kuck (“Kuck”). Another incident occurred sometime later when Jal

asked Plaintiff to run a product on her production line that A Shift was unable to complete. (Id. at

5). This request caused Plaintiff stress as she was concerned that her team could not run the product

correctly, and Jal was unhelpful when Plaintiff tried to discuss her concerns. (Id.).

II. Plaintiff’s Alleged Disability and Defendant’s Termination of Plaintiff

In response to her increased stress, Plaintiff met with therapist Bethanie Hiramoto

(“Hiramoto”) on November 11, 2018. (Doc. No. 33 at 10). Hiramoto initially diagnosed Plaintiff

with unspecified Anxiety Disorder. (Id.). On that same day, Plaintiff gave Defendant a note from

Hiramoto that said Plaintiff needed time off work from November 12-19, 2018, which was

approved. (Doc. No. 30 at 7). On November 18th, Plaintiff gave Defendant a second note

requesting an extension of her leave until December 11, 2018, which was also approved. (Id.). On

December 9th, Plaintiff produced a third note from Hiramoto, requesting another extension until

January 7, 2019, which was again approved. (Id.).

On January 4, 2019, Plaintiff provided a fourth note requesting an extension until February

4, 2019. (Id.). The circumstances surrounding what happened with this request are disputed, but it

seems that Plaintiff received some sort of letter purporting to approve this additional leave. (Doc.

No. 33 at 13). However, Defendant contends this letter was generated by mistake and was not

meant to actually approve Plaintiff’s request, because she had used up all her allotted leave-of-

absence time. (Id.). Defendant’s Leave of Absence Policy allowed employees who had been

employed between three months to one year to take three months of leave. (Doc. No. 33 at 4). In

addition to her leave requests discussed above, Plaintiff previously had taken leave from August

29 to September 24, 2018 for a non-work-related injury. (Doc. No. 30 at 8). The maximum leave

time allotted to Defendant’s employees could not be exceeded unless approved by the Vice

President, HR Operations, the HR Director, or as required by law. (Doc. No. 33 at 4.).

On January 15, 2019, Plaintiff sent Kuck an email that stated the accommodations advised

by Hiramoto, which included a “normalized schedule (ex. A shift),” a work week of no more than

five days, and permission for Plaintiff to attend all therapy and medication-management

appointments. (Doc. No. 30 at 9). Despite being invited to do so, Kuck did not contact Hiramoto

for clarification on whether the accommodation requests were, in Hiramoto’s view, subject to

compromise. (Doc. No. 33 at 16). After receiving Plaintiff’s email, Defendant’s Human Resources

Department scheduled a meeting with her. (Doc. No. 30 at 11). This meeting occurred on January

18, 2019 between Plaintiff, Kuck, and Operations Manager Falah Al-Saadawi (“Al-Saadawi”).

(Id.). During the meeting, Kuck reviewed with Plaintiff the open non-management positions on A-

Shift. (Id. at 13). Defendant contends that no A-Shift Production Supervisor positions were

available. (Id. at 15). The non-management openings included interpreter positions and Food

Safety Quality Assurance (“FSQA”) positions. (Id. at 13). Plaintiff was not qualified for the

interpreter position and turned down the FSQA position because she thought the pay was too low.

(Id.).

At the meeting, Plaintiff asked whether she could be placed in a Floater Supervisor

Position, though these are usually reserved for senior and experienced supervisors who are being

groomed for promotions to General Manager. (Id. at 17). Plaintiff’s request was rejected. (Id.). At

the meeting, Plaintiff also asked for (1) some time to obtain clarification from Hiramoto about

what a “normalized” schedule meant, (2) more time to determine whether Hiramoto would change

her proposed accommodations, and (3) more time to adjust to her medication. (Id. at 18). These

requests were not granted (whether because they were actually denied or because they were never

acted upon), and Plaintiff was terminated from her position on January 18, 2019. (Id. at 20).

III. Procedural Posture

Plaintiff filed the present action on November 26, 2019. Her first cause of action alleged

the following violations of the Americans with Disabilities Act (“ADA”) and the Americans with

Disabilities Act Amendments Act (“ADAAA”): failure to accommodate; failure to engage in the

interactive process; disability discrimination; and retaliation.2 Her second cause of action alleged

disability discrimination and retaliation under the Tennessee Disability Act (“TDA”), and her third

and final cause of action alleged a violation of the Family and Medical Leave Act (“FMLA”).

LEGAL STANDARD

Summary judgment is appropriate where there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “By its very terms,

this standard provides that the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary

under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.

On the other hand, “summary judgment will not lie if the dispute about a material fact is

‘genuine[.]’” Id.

A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect

the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A

genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).

2 Plaintiff’s Complaint states under the heading for Count One “Violation of ADA/ADAAA-Disability

Discrimination/Retaliation.” (Doc. No. 1 at 5). The heading fails to mention a claim for failure to

accommodate or failure to engage in the interactive process. However, Plaintiff proceeds to mention both

a failure-to-accommodate claim and a failure-to-engage-in-the-interactive-process claim in her paragraphs

below the heading. (Id.). In its Motion, Defendant notes, “It is unclear from Plaintiff’s Complaint whether

she is alleging separate claims for failure to accommodate and discriminatory discharge or whether she is

presenting a claim for failure to engage in the interactive process. In an abundance of caution, therefore,

Tyson will address all of these theories . . .” (Doc. No. 25 at 1). In her Response, Plaintiff does not indicate

Defendant’s interpretation of her first cause of action is incorrect and argues for why summary judgment

should not be granted on all four claims, Therefore, the Court will proceed as if Plaintiff brought four

distinct claims under the ADA/ADAAA in her first cause of action.

The party bringing the summary judgment motion has the initial burden of identifying

portions of the record that demonstrate the absence of a genuine dispute over material facts.

Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 627-28 (6th Cir. 2018) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986)). Alternatively, the moving party may meet its initial burden

by otherwise “show[ing]”—even without citing materials of record—that the nonmovant “cannot

produce admissible evidence to support a material fact (for example, the existence of an element

of a nonmovant plaintiff’s claim).” Fed R. Civ. P. 56(c)(1)(B). If the summary judgment movant

meets its initial burden, then in response the non-moving party must set forth specific facts showing

that there is a genuine issue for trial. Pittman, 901 F.3d at 628.

Consistent with the above observations made specifically about a defendant-movant

seeking summary judgment on a plaintiff’s claims, any party asserting that a fact cannot be or

genuinely is disputed—i.e., any party seeking summary judgment and any party opposing

summary judgment, respectively—can support the assertion either by: (a) citing to materials in the

record, including, but not limited to, depositions, documents, affidavits, or declarations, Fed. R.

Civ. P. 56(c)(1)(A), or (b) “showing” (i) that the adverse party cannot produce admissible evidence

to raise a genuine dispute as to that fact or (ii) that contrary to the claim of the adverse party, the

materials cited by the adverse party do not actually establish the absence or presence (as the case

may be) of a genuine dispute as to that fact.

In reviewing a motion for summary judgment, this court must view the evidence in the

light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020)

(quoting Anderson, 477 U.S. at 248). Likewise, the court should view the facts and draw all

reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility

judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844,

852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact,

summary judgment is not appropriate. Id. The court determines whether sufficient evidence has

been presented to make the issue of fact a proper jury question.3 Id. The mere existence of a

scintilla of evidence in support of the non-moving party’s position will be insufficient to survive

summary judgment; rather, there must be evidence upon which the jury could reasonably find for

the non-moving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).

On a motion for summary judgment, a party may object that the supporting materials

specified by its opponent “cannot be presented in a form that would be admissible in evidence.”

Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must

show that the material is admissible as presented or explain how it could be presented in a form

that would be admissible. Thomas v. Haslam, 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018);

Mangum v. Repp, 2017 WL 57792 at *5 (6th Cir. Jan. 5, 2017) (citing Fed. R. Civ. P. 56(c)

advisory committee’s note to 2010 amendment).

DISCUSSION

Via the Motion and Memorandum in Support, Defendant moves for summary judgment on

all of Plaintiff's claims. The Court will discuss each of these claims in turn.

I. Failure to Accommodate

ADA claims premised on a failure to accommodate “necessarily involve direct evidence

and the [McDonnell-Douglas] burden shifting approach is not applicable.”4 Fisher v. Nissan N.

3 Courts (appropriately) at times refer interchangeably to a party being able to raise a genuine issue as to

fact and a reasonable jury being able to find in the party’s favor on that fact, and this Court does likewise.

4 It would be inaccurate to say that no kind of burden shifting is applicable here. As explained below, even

under the direct-evidence approach, a kind of burden-shifting is contemplated. So Fisher’s reference here

must be to the inapplicability of the McDonnell-Douglas kind of burden-shifting in particular.

Am., Inc., 951 F.3d 409, 416 (6th Cir. 2020); Morrissey v. Laurel Health Care Co., 946 F.3d 292,

298 (6th Cir. 2019) (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007)

(“Because ‘not making reasonable accommodations’ is listed in the ADA's definition of disability

discrimination, see 42 U.S.C. § 12112(b)(5)(A), ‘claims premised upon an employer's failure to

offer a reasonable accommodation necessarily involve direct evidence (the failure to

accommodate) of discrimination.’”). Accordingly, such claims are analyzed “under the direct-

evidence framework, which requires that [Plaintiff] establish that (1) she “is disabled,” and (2) that

she is “‘otherwise qualified’ for the position despite . . . her disability: (a) without accommodation

from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or (c) with a

proposed reasonable accommodation.” 5 Wyatt v. Nissan North America, Inc., 999 F.3d 400 (6th

Cir. 2021) (quoting Fisher, 951 F.3d at 417). To be clear, a plaintiff must show these elements—

which the Court will refer as the elements of a prima facie case of failure to accommodate6—to

5 Notably, the second of the three options for satisfying the second element of the prima facie case (i.e.,

showing that the plaintiff is qualified for the job with a job requirement eliminated) is fully encompassed

within the third option (i.e., showing that the plaintiff is qualified for the job with a proposed reasonable

accommodation) when the proposed reasonable accommodation is the elimination of a job requirement.

That is, if the plaintiff has shown that the elimination of a job requirement is a reasonable accommodation,

the plaintiff necessarily also has shown that the plaintiff is qualified for the job with that job requirement

eliminated. On the other hand, the second requirement can be satisfied even if the third requirement is not;

a plaintiff can be qualified for a job with a particular job requirement eliminated even if the proposed

elimination of such job requirement is not a reasonable proposed accommodation because the job

requirement turns out to be essential.

Finally, the Court notes that at times courts, like the Sixth Circuit in Wyatt, speak in terms of a

plaintiff being “disabled” rather than in terms of “having a disability.” This is unfortunate not only because

the former terminology well may be more incentive, but also because the statute used the latter rather than

the former terminology.

6 Usually, in the employment discrimination context, a reference to a “prima facie case” is a reference to

an indirect-evidence prima facie case. But the term appropriately can be used to refer also to a direct-

evidence prima facie case. “In other words, the notion of a ‘prima facie case’ applies in the direct-evidence

context as well as in indirect-evidence context, where the actual term itself is used more frequently. The

upshot of establishing a prima facie case in either context is that it shifts the burden to the defendant, but

the burden thus shifted is different in the direct-evidence context than in the indirect-evidence context.”

establish a claim for failure to accommodate under the ADA, but a plaintiff that does so need not

survive the second and third stages of an indirect-evidence analysis under McDonnell Douglas,

because McDonnell Douglas is simply inapplicable.7 Instead, if the plaintiff establishes a prima

facie case of failure to accommodate, the defendant “[i]n turn bears the burden of proving that a

challenged job criterion is essential, and therefore a business necessity, or that a proposed

accommodation will impose an undue hardship upon [the defendant].”8 Fisher, 951 F.3d at 417

(internal quotation marks omitted). The Court will refer to these two alternatives —showing that

a challenged job criterion is essential and showing that the proposed accommodation will impose

Grizzard v. Nashville Hosp. Cap., LLC, No. 3:18-CV-00034, 2021 WL 3269955, at *19 (M.D. Tenn. July

30, 2021). Because there is no such thing as an indirect-evidence theory of failure to accommodate, any

reference to a prima facie case of failure to accommodate is a reference to a direct-evidence theory of failure

to accommodate, and so there is no need to qualify the reference with the phrase “direct evidence.” But as

for other kinds of discrimination claims, which can be pursued under either a direct-evidence theory or an

indirect-evidence theory, each of which implicate a “prima facie case,” it can be helpful to qualify the term

“prima facie case” with the term “direct-evidence” or “indirect-evidence” as appropriate, and the Court will

do so herein.

7 The McDonnell Douglas analytical framework, referenced here, applies to a wide variety of employment

discrimination claims (including those under the ADA/ADAAA) to the extent that they are based on indirect

(i.e., circumstantial) evidence. The applicability and workings of the McDonnell Douglas burden shifting

framework are discussed below. But for now, suffice it to say that a failure-to-accommodate claim (as

opposed to a general discrimination claim, i.e. a claim that the plaintiff suffered an adverse employment

action based on her membership in a protected class, in this case the class of persons with a disability) under

the ADA is necessarily shown by direct, and not indirect, evidence. By contrast, as Plaintiff correctly notes,

(Doc. No. 29 at 16), “ADA discrimination claims are analyzed under two different rubrics, depending on

whether the plaintiff relies on ‘direct’ or ‘indirect’ evidence of discrimination.” Morrissey v. Laurel Health

Care Co., 943 F.3d 1032, 1037 (6th Cir. 2019).

8 It seems that these defenses naturally would overlap whenever the proposed accommodation is the

elimination of a job requirement that the defendant claims is essential. In that case, the proposed

accommodation (the elimination of the job requirement) seemingly would be an undue burden on the

defendant precisely because (the proposed accommodation) it is the elimination of an essential requirement;

surely it is an undue burden on an employer to have a positions staffed by, and to pay full salary to, a person

who does not (because she cannot because of her disability) perform the essential functions of the job.

Nevertheless, the Court treats them as two separate defenses in any case.

an undue hardship on the defendant—as “defenses,” although perhaps that term is not technically

the most precise word for their role.

So, on a defendant’s motion for summary judgment with respect to a failure-to-

accommodate claim, the question is whether the defendant has shown that the plaintiff cannot raise

a genuine dispute of material fact as to either (i) the non-existence of at least one of the two

elements of the plaintiff’s prima facie case, or, alternatively, (ii) the existence of at least one of the

two alternative defenses. A defendant can choose either (a) to focus only on the initial showing

that plaintiff cannot establish a prima facie case; (b) to make each of the above two showings in

turn, or (c) to skip the first option and proceed directly to attempting to show that there is no

genuine dispute as to the applicability of one of the defenses.

Not insignificantly, one part of the analysis of the plaintiff’s prima facie case overlaps with

one part of the analysis of whether the defendant has met its burden to establish one of the two

defenses (assuming that the plaintiff successfully shifted such burden to the defendant).

Specifically, “[i]n failure-to-accommodate claims where the employee requests an

‘accommodation that exempts her from an essential function,’ ‘the essential functions and

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

to the other (the accommodation is not reasonable).” E.E.O.C. v. Ford Motor Co., 782 F.3d 753,

763 (6th Cir. 2015) (quoting Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237–

38 (9th Cir. 2012)). In other words, if the defendant has a valid defense that the job requirement

proposed by the plaintiff to be eliminated—and thereby make her qualified under the remaining

job criteria—is “essential,” that necessarily means that the proposed elimination of such

requirement is not a “reasonable accommodation” for purposes of the third alternative for

satisfying the second element of the plaintiff’s prima facie case.9 However, even if the job

requirement proposed to be eliminated is essential, a plaintiff still can satisfy the second

alternative.10 In other words, the second alternative does not require the Plaintiff to show that the

job requirement to be eliminated is actually essential.11

Here, Plaintiff’s requested accommodation was a “normalized work schedule and a 5-day

work week.” (Doc. No. 1 at 5). And she implies that she was qualified for her job with any

9 It is worth emphasizing that this principle implicates only the third alternative for establishing the second

element of the prima facie case, i.e., showing that the plaintiff would be “qualified . . .. with a proposed

reasonable accommodation.” That is, a plaintiff cannot show that she is qualified with a proposed

reasonable accommodation when the proposed accommodation is the elimination of a job requirement that

is essential; in such a case the proposed requirement is not reasonable and so the third alternative by its very

terms is not satisfied. On the other hand, the second alternative is not implicated; a plaintiff can satisfy the

second alternative by showing that she is qualified with a particular job requirement eliminated even if that

job requirement is not actually (as opposed to merely allegedly) essential.

10 As noted in the footnote above, if a plaintiff is qualified with the elimination of a particular job

requirement plaintiff proposes to be eliminated, then the plaintiff satisfies the second alternative for

satisfying the second element of the plaintiff’s prima facie case irrespective of whether that job requirement

is actually essential.

11 Wyatt characterizes a plaintiff’s second alternative for satisfying the second element of a prima facie case

as establishing that the plaintiff was “qualified . . . with an alleged essential job requirement eliminated.”

Wyatt, 999 F.3d at 400. Thus, at most, this alternative requires only that the job requirement to be eliminated

be merely allegedly—as opposed to actually—essential.

One might reasonably wonder, however, whether even mere alleged essentiality is truly required.

Perhaps Wyatt was unintentionally indicating the existence of a requirement that does not in fact exist.

Wyatt makes it sound as if the plaintiff can satisfy this alternative by showing that she would be qualified

with a job requirement eliminated only if such job requirement has been alleged by the defendant to be

essential. But surely this is not so; it must be that a plaintiff can satisfy this alternative by showing that the

elimination of a particular job requirement would render her qualified, without having to show from the

get-go that such job requirement was alleged by the defendant to be essential. Indeed, it would seem that

the plaintiff’s overall position is stronger if the job requirement she proposes to be eliminated (thus leaving

her qualified) is not even alleged to be essential. The issue of whether the job requirement to be eliminated

is essential actually need not, and surely does not, arise unless and until the burden shifts to the defendant

to offer a defense, at which time the defendant may choose to assert that the job requirement is essential.

So the Court proceeds accordingly, reading the second alternatively as if it referred simply to the plaintiff

being “qualified with a particular job requirement eliminated.” This is not merely an academic point, but

one with practical consequences—one of which is that all discussion herein about a job requirement being

“essential” is irrelevant to whether the plaintiff has satisfied the second alternative for satisfying the second

element of the plaintiff’s indirect-evidence prima facie case—a requirement that actually relates to a job

requirement (proposed by the plaintiff to be eliminated) irrespective of whether it is “essential.”

requirement for more hours and days eliminated. Defendant does not really challenge this

implication. And so the Court finds that Defendant has failed to show that Plaintiff cannot satisfy

the second element of her prima facie case (more specifically, the second alternative for satisfying

the second element).12 And Defendant likewise has not shown (or even attempted to show) that

Plaintiff cannot satisfy the first element, i.e., that Plaintiff had a disability. So the burden shifts to

Defendant to show the absence of a genuine dispute as to one of the two possible defenses.

Defendant raises only one of the two possible defenses. Namely, it argues in essence that

Plaintiff has challenged a job requirement that is essential.13 As noted, Plaintiff’s requested

accommodation was a “normalized work schedule and a 5-day work week.” (Doc. No. 1 at 5). In

essence, she challenges Defendant’s requirement to work more than “normal” hours and more than

5 days a week. Defendant contends that this challenged job requirement is essential—that an

essential function of Plaintiff’s job is working 70-80 hours and up to six days a week (rather than

a “normalized” and five-days-per-week schedule). (Doc. No. 25 at 15-16).

12 This is true whether or not Plaintiff’s proposed elimination of any requirement for longer hours is a

“reasonable accommodation” so as to enable her to satisfy the third alternative.

13 Defendant does not really frame this argument as a defense to Plaintiff’s claim. Defendant argues instead

that because the challenged job requirement is essential, and because Plaintiff cannot satisfy that

requirement and proposes instead that she be accommodated by being relieved of this requirement, Plaintiff

is not a qualified person with a disability and has not requested a reasonable accommodation. (Doc. No. 25

at 14-18). In so doing, Defendant clearly is claiming that Plaintiff cannot meet the elements of her prima

facie case. But as suggested in part above, Defendant’s attack on Plaintiff’s prima facie case falls flat.

Defendant’s argument obviously does nothing to undermine the first element, i.e., that Plaintiff has a

disability. And it plainly fails to undermine the second alternative for satisfying the second element, i.e.,

that Plaintiff was qualified with an alleged essential job requirement eliminated; Plaintiff obviously could

conceivably show this even if Defendant successfully undermines the first and third alternatives for

satisfying this element by showing that Plaintiff could not perform the job without being granted the

accommodation of having this particular alleged essential job requirement eliminated.

As noted, Defendant did not identify the alleged essentialness of the job requirement as a matter

pertaining to a defense, as would have been ideal. However, Defendant is so express and intentional about

arguing that the challenged job requirement was essential that the Court finds it appropriate to consider that

argument where it is most directly applicable: on the issue of whether Defendant, in response to receiving

the burden to establish a defense, has established the defense that the challenged job requirement is essential.

To determine whether Defendant has established this defense sufficiently to prevail on

summary judgment by virtue of it, the Court must first determine whether Defendant has shown

that Plaintiff would be unable to raise a genuine dispute that 70-80-hour and six-day work weeks

are an essential function of a Production Supervisor position at Defendant’s plant. To support its

contention that it has made this showing, Defendant points to Plaintiff’s deposition where she notes

she “frequently [] would not leave the plant until well after 2:00 in the morning,” and was working

between 70-80 hours and six-days a week for months. (Doc. No. 27-1 at 9, 28). Additionally,

Defendant cites to the deposition of Scott Kuck, where he notes production at the plant was running

six-days a week during 2019. (Doc. No. 27-2 at 13).

The EEOC regulations provide insight regarding what constitutes an “essential function”:

(1) In general. The term essential functions means the fundamental job duties of the

employment position the individual with a disability holds or desires. The term

“essential functions” does not include the marginal functions of the position.

(2) A job function may be considered essential for any of several reasons, including

but not limited to the following:

(i) The function may be essential because the reason the position exists is to

perform that function;

(ii) The function may be essential because of the limited number of

employees available among whom the performance of that job function can

be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the

position is hired for his or her expertise or ability to perform the particular

function.

(3) Evidence of whether a particular function is essential includes, but is not limited

to:

(i) The employer's judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing

applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the

function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n). Defendant’s evidence appears to fall into the category of “work experience

of past incumbents,” and does suggest that there may be no genuine dispute as to whether the

challenged job requirement (the work schedule of 70-80 hours and six days per week) is essential.

However, Plaintiff argues that a six-day, 70–80-hour work week is not an essential function

of a Production Supervisor, and she therefore could have performed the position with her requested

accommodations in place. Plaintiff points to the written job description of a Production Supervisor,

which does not list a 70-80 hour or six-days a week requirement. (Doc. No. 31-9 at 1). She

additionally notes that Defendant used a rotation schedule for some employees, which allowed,

but did not require, them to opt-in for a sixth day during the work week. (Doc. Nos. 31-2 at 22,

31-3 at 6,7, 31-6 at 4, 31-1 at 14). Then Plaintiff points to testimony from Al-Saadawi

acknowledging that Defendant may have been able to accommodate Plaintiff with a five-day work

week using said rotation schedule. (Doc. No. 31-3 at 8).

“Determining whether a function is essential ‘is a question of fact that is typically not

suitable for resolution on a motion for summary judgment.’” Rorrer v. City of Stow, 743 F.3d 1025,

1043 (6th Cir. 2014) (quoting Keith v. County of Oakland, 703 F.3d, 918 926 (6th Cir. 2013)).

With that in mind, the Court believes Defendant has not pointed to enough evidence whereby a

reasonable jury could not find that 70-80-hour and six-day work weeks are not an essential function

of the Production Supervisor position. Accordingly, Defendant has failed to show an absence of a

genuine dispute as to the validity of its defense, and Defendant’s Motion will be denied with

respect to Plaintiff’s failure-to-accommodate claim.14

14Defendant makes the additional argument based on what it essentially contends was an offer of a

reasonable accommodation made by it (as contrasted with Plaintiff’s proposal for a very different alleged

reasonable accommodation that is discussed throughout this opinion). Specifically, Defendant argues that

Plaintiff cannot be a qualified individual (with a disability) because she declined Defendant’s offer of an

II. Failure to Engage in the Interactive Process

Defendant next challenges Plaintiff’s claim for failure to engage in the interactive process.

But before considering Defendant’s argument, the Court must initially determine whether Plaintiff

is able to bring an independent claim for failure to engage in the interactive process. “Most courts

hold that an employer’s failure to engage in the interactive process is not an independent legal

violation.” BARBARA T. LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW

922 (C. Geoffrey Weirich ed., 4th ed. 2007); see also Matos v. DeVos, 317 F. Supp. 3d 489, 497

(D.C.C. 2018) (“There is no independent cause of action for failure to engage in the interactive

process—under the ADA . . . there is only a cause of action for failure to accommodate

generally.”); Whelan v. Teledyne Metalworking Prods., 226 F. App’x 141, 147 (3d 2007)

(indicating that a failure-to-engage-in-the-interactive-process claim is not an independent cause of

action); Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001) (“[T]he failure to engage in the

interactive process by itself does not give rise to relief.”); Fjellestad v. Pizza Hut of Am., Inc., 188

FSQA position on A-Shift. (Doc. No. 25 at 16-17). For this proposition, Defendant cites Zaffino v. Metro.

Gov’t of Nashville & Davidson Cty., No. 3:14-CV-1909, 2016 WL 5724187, at *6 (M.D. Tenn. Sept. 30,

2016), which says “The law is clear that an individual will no longer be considered a ‘qualified individual

with a disability’ if she rejects a reasonable accommodation.” However, this quote is missing important

context. To support this proposition, Zaffino quotes 29 C.F.R. § 1630.9(d) (2011), which reads “An

individual with a disability is not required to accept an accommodation . . . However, if such individual

rejects a reasonable accommodation . . . that is necessary to enable the individual to perform the essential

functions of the position . . . , the individual will not be considered qualified.” This additional language

suggests that an individual will not be deemed qualified if she rejects a reasonable accommodation offered

by the defendant (as contrasted with the situation, presented in the current case, where the proposed

accommodation is offered by the plaintiff) that would allow her to remain qualified for her existing position

(by enabling her to perform essential functions for that position that she otherwise could not perform). So

Zaffino does not stand for the proposition that an individual cannot be deemed qualified if she rejects an

offer of an entirely different position, and Defendant leaves no doubt that this was a different position from

Plaintiff’s existing position—a reality that is ever more apparent if one considers that it was a significant

reduction in pay from what her existing position paid. (Doc. Nos. 29 at 11, 33 at 19). Therefore, Plaintiff

did not have to accept the FSQA position to be considered a qualified individual.

F.3d 944, 952 (8th Cir. 1999) (“[T]here is no per se liability under the ADA if an employer fails

to engage in an interactive process.”).

The Sixth Circuit has stated, “In this circuit, failure to engage in the interactive process

does not give rise to an independent claim. Instead, it is a violation of the ADA only if the plaintiff

establishes a prima facie case of failure to accommodate.” Thompson v. Fresh Prod., LLC, 985

F.3d 509, 525 (6th Cir. 2021). It is unclear whether the reference here to an independent “violation”

of the ADA is intended to mean an independent cause of action under the ADA, but that seems

unlikely because the court had just stated without qualification that failure to engage in the

interactive process does not give rise to an independent claim. So this Court is not prepared to

accept this as a recognition of an independent cause of action absent further support for such

recognition, especially since the weight of authority rejects that approach.15 This is partially

because the Court can find no case law laying out the elements of a claim (or prima facie case) of

failure to engage in the interactive process, which presumably would be an easy task if such a

claim actually existed independently. In fact, the Court could find only one Sixth Circuit case—

an unpublished one—even acknowledging the standard that would be applicable to a failure-to-

engage claim. See O'Donnell v. Univ. Hosps. Cleveland Med. Ctr., 833 F. App'x 605, 614 (6th Cir.

15 Other cases support this approach. In Kleiber, the court analyzed a failure-to-engage-in-the-interactive-

process argument as if it were a part of a failure-to-accommodate claim. 485 F.3d at 871; see also Wardia

v. Just. & Pub. Safety Cabinet Dep't of Juv. Just., 509 F. App'x 527, 532 (6th Cir. 2013) (“But an interactive-

process argument simply does not create an independent ground to support an ADA violation beyond

standard reasonable-accommodation analysis.”). The idea seems to be that one way of proving that, or

telling the story about how, the defendant denied the plaintiff an allegedly reasonable accommodation is to

show that the defendant was resistant even to engage with the plaintiff on the subject—that this is the true

(limited) significance of the defendant failing to engage in the interactive process. And district courts within

the Sixth Circuit have followed suit. See Doe v. Directions for Youth & Families, Inc., No. 15-cv-2861,

2016 WL 6093370, at *8 (S.D. Ohio Oct. 19, 2016) (specifically coining the term “accommodation claim,”

to refer to the plaintiff’s claim that the defendant failed to engage with the plaintiff in an interactive process

seeking a reasonable accommodation for her disability).

2020) (stating that a failure-to-engage claim is “evaluated under the direct-evidence standard” like

a failure-to-accommodate claim). Additionally, this Court is not even sure what potential damages

a plaintiff could allege under a failure-to-engage-in-the-interactive-process claim that would not

be fully covered by a failure-to-accommodate claim; that is to say that it seems that a plaintiff

would not have any appreciable damages stemming from the mere fact that the defendant failed to

interact or engage with her regarding reasonable accommodations;16 any damages would flow

from the defendant denying the plaintiff her requested accommodation. For these reasons, the

Court determines that Plaintiff cannot bring an independent claim for failure to engage in the

interactive process, and therefore it need not consider Defendant’s arguments in favor of summary

judgment on this “claim”.

III. Disability Discrimination

Plaintiff’s Complaint states that Defendant violated the ADA/ADAAA when it

“discriminated against [her] by refusing to accommodate her and by terminating her during her

approved medical leave after she requested accommodations.” (Doc. No. 1 at 6). The first part of

this sentence merely reiterates Plaintiff’s above-analyzed failure-to-accommodate claim and does

not suggest any other variety of disability discrimination; as the failure-to-accommodate claim has

been addressed above, it need not be addressed again here. The second part of the sentence is,

regrettably, unclear as to whether it is alleging termination based on her protected status (a person

with a disability) or termination based on her undertaken protected conduct (requesting

accommodations for her disability); this is a distinction with a difference, because the first

possibility is an allegation of general disability discrimination in violation of the ADA/ADAAA,

16 It would seem that a defendant’s mere refusal to engage, by itself, would occasion injury no more serious

than indignation or hurt feelings at being ignored and the relatively minor inconvenience of wasting time

on trying unsuccessfully to get the defendant’s attention on the issue of reasonable accommodation.

while the second is an allegation of retaliation in violation of the ADA/ADAAA. The second

possibility is dealt with below.

As for the possible allegation of general disability discrimination—termination allegedly

motivated by Plaintiff having a disability, the Court will proceed as if such an allegation was in

fact made. Defendant does likewise,17 noting that “[i]t appears that Plaintiff also intends to pursue

a discriminatory discharge claim under the ADA and TDA.” (Doc. No. 25 at 21).

As suggested above, claims of general disability discrimination can be pursued based on

direct evidence or indirect evidence. Plaintiff does not offer any direct evidence that she was

discriminated against based on her membership in the protected class of persons with disabilities;

that is, she does not offer any evidence that would require the conclusion, without resort to the

drawing of inferences, that her termination was motivated by discriminatory animus towards

persons with disabilities (or, to put it just slightly differently, by animus against Plaintiff because

she is a person with a disability).

Thus, Plaintiff’s claim of general disability discrimination stands or falls on an indirect-

evidence theory, which can be pursued in the manner and under the procedure cogently

summarized as follows:

[A] plaintiff lacking direct evidence of discrimination may succeed on a

Title VII claim by presenting indirect evidence under the framework first set forth

in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 36

L.Ed.2d 668 (1973).

To succeed under the McDonnell Douglas framework, the plaintiff must

first make out a prima facie case of discrimination by a preponderance of the

evidence. . . . Once the plaintiff makes out a prima facie case, the burden shifts to

the defendant “to articulate some legitimate, nondiscriminatory reason for” the

adverse employment action. Should the defendant do so, the plaintiff then must

17 Defendant’s use of the word “appears” is quite apt since Plaintiff did not make this as clear as she should

have.

prove by a preponderance of the evidence that the stated reasons were a pretext for

discrimination.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606–07 (6th Cir. 2019) (citations omitted).

While the above quote references Title VII discrimination, McDonnell Douglas is likewise

applicable to claims under the ADA/ADAAA that rely on indirect evidence. See Daugherty v.

Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008).

When a defendant-movant challenges a plaintiff’s ability to reach a jury on an indirect-

evidence theory of employment discrimination, there are a number of steps potentially implicated,

though not all of them necessarily need be addressed in the analysis. The number of steps to be

addressed depends on whether the defendant-movant seeks to prevail at the first step, or at the

second and third step,18 or at both the first step and the second and third step. Here, as further

explained below, Defendant attempts to prevail at both the first step (i.e., by contesting Plaintiff’s

ability to reach a jury on her indirect-evidence prima facie case), and at the second and third steps

(by asserting that it had a legitimate, non-discriminatory reason and contesting Plaintiff’s ability

to reach a jury on the issue of whether such reason was pretextual). The Court thus explains all of

the analytical steps applicable to this kind of two-pronged (as opposed to single pronged) attack in

the specific context of a motion for summary judgment.

To prevail at the first step of McDonnell-Douglas, the defendant, as the summary-judgment

movant, must meet its initial burden of showing an absence of evidence from which a reasonable

jury could find the plaintiff established a prima facie case. E.g., Banks v. State of Ohio, No. 94–

3866, 1995 WL 118993, * 2 (6th Cir. Mar. 20, 1995). If the defendant does so, then the burden

18 A defendant-movant properly can choose to forgo a challenge the plaintiff’s indirect-evidence prima facie

case and instead proceed directly to the second step of showing a legitimate, non-discriminatory reason for

its termination of plaintiff, in hopes of reaching the third step.

shifts to the plaintiff to show that at trial it could “make out a prima facie case of discrimination

by a preponderance of the evidence.” Redlin, 921 F.3d at 606. If the plaintiff fails to succeed here,

then the plaintiff suffers summary judgment in favor of the defendant on the claim. But if the

plaintiff succeeds here, defendant does not prevail at the first step and is relegated to try instead to

prevail at the second and third steps of McDonnell-Douglas.

At the second step, the defendant-movant has the burden (of production only19) to show a

legitimate and non-discriminatory reason for its action(s). Brown, 814 F. App’x at 80 (noting, on

the defendant’s motion for summary judgment that it is a “burden of production [that potentially]

shifts to the defendant to show a legitimate, nondiscriminatory reason for the way it treated the

plaintiff”). If the defendant successfully shows evidence of a non-discriminatory reason for its

alleged discriminatory act, the court proceeds to the third step, where “the plaintiff must rebut the

proffered reason by producing evidence from a which a reasonable jury could conclude that the

proffered reason is actually a pretext” for unlawful discrimination. Willard v. Huntington Ford,

Inc., 952 F.3d 795, 807 (6th Cir. 2020) (quotations omitted). The undersigned has previously

summarized how the indirect-evidence framework applies to claims of general discrimination

(and, for that matter, retaliation) on motions for summary judgment:

To obtain summary judgment on Title VII or THRA claims grounded

exclusively on the so-called “indirect-evidence” theory, the defendant must either

(i) show that there is no genuine issue of material fact as to at least one of the

elements of the plaintiff’s prima facie case (such that the defendant necessarily is

entitled to judgment as a matter of law based on the absence of that element); or,

failing that, (ii) (a) make an evidentiary showing that there was a legitimate,

nondiscriminatory reason for its alleged actions and then (b) show that there is no

genuine issue of material fact as to pretext (such that the defendant necessarily is

19 A burden of production means that the defendant merely has to offer admissible evidence adequate to

support a finding that the defendant had such a reason. By contrast, a burden of persuasion would require

the defendant-movant to show that no reasonable jury could fail to find that the defendant-movant had such

a reason. See Benitez v. Tyson Fresh Meats, Inc., No. 3:18-CV-00491, 2022 WL 58399, at *22 (M.D. Tenn.

Jan. 5, 2022).

entitled to judgment as a matter of law based on the absence of pretext). On the

other hand, the plaintiff will avoid summary judgment if : (i) either (a) the defendant

fails to meet its initial burden to show the lack of a genuine issue of material fact

as to any or more elements of the plaintiff’s indirect-evidence prima facie case, or

(b) the plaintiff presents sufficient evidence to demonstrate a genuine issue of

material fact as to any element(s) of such prima facie case as to which the defendant

met its initial burden to show the lack of a genuine issue of material fact; and (ii)

either (a) the defendant cannot make an evidentiary showing of a legitimate,

nondiscriminatory reason for its alleged actions, or, if the defendant can make such

a showing, (b) the plaintiff demonstrates that there is a genuine issue of material

fact as to pretext.

Benitez v. Tyson Fresh Meats, Inc., No. 3:18-CV-00491, 2022 WL 58399, at *23 (M.D. Tenn. Jan.

5, 2022). With these analytical principles in mind, the Court proceeds to Defendant’s argument in

favor of summary judgment as to Plaintiff’s disability discrimination claim.

At step one of the McDonnell-Douglas framework, Defendant initially challenges the

ability of Plaintiff to raise a genuine issue of fact as to one particular element of an indirect-

evidence prima facie case of disability discrimination.20 This challenge is based on the argument

that Plaintiff cannot establish that she is a qualified individual with a disability, with or without

20 Defendant identifies this as the second of five elements of such prima facie case: (Doc. No. 25 at 21)

(“[T]o establish a prima facie case of disability discrimination, separate from a failure to accommodate

claim, a plaintiff must establish: (1) that she is disabled; (2) that she is otherwise qualified for the position,

with or without reasonable accommodation; (3) that she suffered an adverse employment action; (4) that

the employer knew or had reason to know of her disability; and (5) her position remained open while

defendant sought other applicants or replaced her”) (citing Vasser v. Shiroki N. Am., Inc., 2:19-cv-00098,

2020 WL 1905182, at *5 (M.D. Tenn. Apr. 17, 2020)). The second element reflects a major difference

between an indirect evidence prima facie case of general disability discrimination and a (direct evidence)

prima facie case of failure to accommodate. To establish the second element of the former case, a plaintiff

must show that she is otherwise qualified with or without reasonable accommodation. To establish the

second element of the latter case, the plaintiff may establish either (1) that she is qualified without an

accommodation, or (2) that she is qualified with an alleged essential job requirement eliminated, or (3) that

she is qualified with a reasonable accommodation; in such cases where the plaintiff has proposed the

elimination of an alleged essential job requirement, the second option is often not genuine in dispute,

making it is easy for the plaintiff to establish the second element. This easy path to establishing the second

element of an indirect-evidence prima facie case of general disability discrimination is never available to

plaintiffs, however, meaning that it is often not nearly as easy to establish such a case as it to establish a

prima facie case of failure to accommodate.

reasonable accommodation. (Doc. No. 25 at 21). Defendant premises this argument on the above-

referenced argument that Plaintiff cannot perform an allegedly essential function of the job, i.e.,

work 70-hours hours and six days a week. This time, unlike with the same argument Defendant

made in connection with Plaintiff’s failure-to-accommodate claim, it was proper for Defendant to

direct the argument at Plaintiff’s prima facie case.21 But the argument’s premise is flawed, in the

Court’s view; for the reasons discussed above, the Court finds that Plaintiff has shown there is a

genuine dispute as to whether 70-80-hour, six-day work weeks are an essential function of a

Production Supervisor.

Proceeding alternatively to the second step, Defendant contends that “[e]ven if the Court

were to find that Plaintiff has established a prima face case of disability discrimination, her claim

would still fail because [Defendant] has articulated a legitimate, non-discriminatory reason for her

termination.” (Doc. No. 25 at 22). Defendant states that Plaintiff was terminated because she “was

unable to return to work and she had exhausted her available leave” not because she was an

individual with a disability. (Id.). As evidence of this, Defendant notes that its leave-of-absence

policy allows employees up to 12 weeks of FMLA leave in a single year (Doc. No. 27-1 at 62),

and that Plaintiff was aware of this policy. (Id. at 19-20). It is undisputed that Plaintiff had used

up her three months of available leave by the time she met with Defendant’s representatives to

discuss her accommodations. Defendant cites to the deposition testimony of Denton where he says

Plaintiff was terminated because Defendant could not place her into a position, and she had

exhausted all of her leave. (Doc. No. 27-3 at 14). Defendant also cites to a similar proposition from

21 As reflected in a footnote immediately above, the argument that the plaintiff is not qualified with or

without reasonable accommodation can be far more effective in challenging an indirect evidence prima

facie case of general disability discrimination than in challenging a prima facie case of failure to

accommodate, which does not necessarily require a showing that the plaintiff is not qualified with or

without reasonable accommodation because it provides the plaintiff two alternatives to doing so.

Al-Saadawi’s deposition where he responds that he knew Plaintiff would be terminated during

their meeting “[b]ecause she pretty much -- she cannot work on B-Shift at all, and she exceeded

her time of leave based on the policy.” (Doc. No. 27-4 at 11). The Court finds that this cited

evidence is sufficient for Defendant to be deemed to have met its burden of production of showing

a legitimate, non-discriminatory reason for Plaintiff’s termination.

For this reason, Defendant survives to the third step, at which the burden shifts to Plaintiff

to show a genuine dispute as to whether or not Defendant’s stated reason is pretextual, and whether

the real reason is discriminatory in nature.

In Benitez, the undersigned further explained,

[O]nce the burden has shifted back to the plaintiff, the plaintiff must show by a

preponderance of the evidence each of two components of pretext: that the

defendant’s reasons (i) were not its true reasons and (ii) were instead actually a

pretext for discrimination.” Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Sch.,

974 F.3d 652, 661 (6th Cir. 2020)). To defeat a summary judgment motion in such

circumstances, the plaintiff must produce sufficient evidence from which the jury

could reasonably reject the defendant's explanation and infer that the defendant

intentionally discriminated against him. Braithwaite v. Tinken Co., 258 F.3d 488,

493 (6th Cir. 2001).

An employee can show pretext “by offering evidence that (1) the employer's

stated reason had no basis in fact, (2) the stated reason did not actually motivate the

employer, or (3) the stated reason was insufficient to warrant the adverse

employment action.” Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 590 (6th

Cir. 2014).

. . .

In some cases, the evidence that the defendant's proffered reason was not the

proffered reason will serve equally as evidence that the real reason was

discriminatory, and vice versa. After all, evidence may suggest that the defendant's

proffered (non-discriminatory) reason was not the real reason precisely because it

suggests that the real reason was discriminatory; likewise, evidence may suggest

that the defendant's proffered (non-discriminatory) reason was discriminatory

precisely because it suggests that (suspiciously) the proffered reason was not the

real reason.

2022 WL 58399 at *20.

To demonstrate pretext, Plaintiff first notes the undisputed fact that prior to her January

18th meeting with Defendant’s representatives, she had requested additional leave until February

4, 2019. Plaintiff points to evidence that this request had been approved, including a copy of her

Leave of Absence application, which shows it was signed for approval by Scott Kuck. (Doc. No.

31-10 at 15). Additionally, Plaintiff points to an email from Audrey Shepard to Kuck and Lisa

Luckett (Defendant’s Benefits Coordinator, “Luckett”), which says, “Attached is an LOA Letter

for [Plaintiff] who is expected to return on 2/4/2019. This letter was mailed from Corporate. Please

file this letter in [Plaintiff’s] Personnel File.” (Doc. No. 31-14 at 1). Then, Plaintiff cites to an

email from Joyce Brannon to Luckett discussing Plaintiff’s termination, where Brannon says “I

was told she had an extension until 02/01/19, so I am confused. SAP says she was terminated for

not coming to work? Is this going to be changed or is it correct?” (Doc. No. 31-17 at 1).22 Finally,

Plaintiff argues that evidence she has cited in support of her previously-discussed claims could

also allow a reasonable jury to find Defendant’s stated reason for termination was pretextual,

including: Defendant not considering the rotational policy as a potential way to accommodate

Plaintiff, Defendant’s refusal to allow Plaintiff to meet with her provider to reconsider her

accommodation requests, and Kuck’s proposal of alternative jobs that were not really options (such

as the interpreter position, which Plaintiff was not qualified for).

The Court believes Plaintiff has pointed to sufficient evidence, namely the fact that

Plaintiff’s additional request for leave had been approved (at least in some sense, even if Defendant

22 In this cited evidence, there are references to Audrey Shepard, Joyce Brannon, and SAP. Plaintiff provides

no context for who these individuals are, nor what SAP is. And despite reviewing all cited evidence and

both parties’ Statement of Facts, the Court cannot glean who Shepard or Brannon is, nor what SAP is.

Nonetheless, in keeping with the standard of review on a motion for summary judgment, the Court draws

all inferences in favor of the nonmovant (Plaintiff) and infers these individuals and SAP are both relevant

and beneficial to Plaintiff’s argument.

would characterize such approval as a “mistake”), from which a reasonable jury could determine

Defendant’s stated reason for terminating her (that she had used up all her leave and was unable

to return to work) was not the real reason. This means Plaintiff has satisfied one of the

requirements—that Defendant’s stated reason was not true—of showing a genuine dispute as to

pretext. As to the other requirement—that the real reason was discriminatory in nature—the Court

believes that in this case “the evidence that the defendant's proffered reason was not the proffered

reason [] serve[s] equally as evidence that the real reason was” Plaintiff having a disability.

Benitez, 2022 WL 58399 at *20. The Court so concludes because if (as the jury would be

authorized to conclude the evidence suggests) Defendant’s stated reason for terminating Plaintiff

is untrue, that leads to the questions of what the real reason for Plaintiff’s termination was and why

Defendant would seek to cover it up by purporting a disingenuous different reason. It is at least

inferable based on the rest of the evidence presented by Plaintiff that the real reason was grounded

in discriminatory animus—that if Defendant felt compelled to offer a pretextual reason, it was

driven by the need to hide a reason steeped in discriminatory animus. Because the Court cannot

draw (on the record before it) an indisputable conclusion one way or the other as to why Defendant

terminated Plaintiff, it holds that it should be left to the jury to decide whether Defendant’s

proffered reason was pretextual and whether the real reason was disability-based animus. The

Court does not venture to say that a reasonable jury should or would answer both of these questions

in the affirmative, but rather ventures to say only that the instant record reveals that it could do so.

Accordingly, Defendant’s Motion will be denied as to Plaintiff’s claim for disability

discrimination.

IV. Retaliation

Defendant’s final challenge to Plaintiff’s first cause of action is to Plaintiff’s claim for

retaliation under the ADA/ADAAA. The Complaint fairly can be construed to raise a claim of

retaliation23—more specifically the claim that she suffered an adverse employment action

(termination) as a result of her engaging in protected conduct (requesting accommodations for her

disability). “Under the ADA's retaliation provision, it is unlawful to ‘discriminate against any

individual because such individual has opposed any act or practice made unlawful by [the ADA]

or because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [the ADA].’” Chaniott v. DCI Donor Servs., Inc., 481

F. Supp. 3d 712, 727 (M.D. Tenn. 2020) (quoting 42 U.S.C. § 12203(a)). “‘[R]equests for

accommodation are protected acts’ for the purposes of an ADA retaliation claim.” Id. (quoting

Hurtt v. Int'l Servs., Inc., 627 F. App'x 414, 422 (6th Cir. 2015)).

As suggested above, retaliation in violation of federal employment discrimination statutes

generally (and certainly in the case of the ADA/ADAAA) can be proven either by direct evidence

or by indirect evidence. Swanton v. Wyndham Vacation Resorts, Inc., No. 3:20-CV-00480, 2021

WL 5744708, at *8 (M.D. Tenn. Dec. 1, 2021) (citing Brown v. Kelsey-Hayes Co., 814 F. App'x

72, 79 (6th Cir. 2020)). “Direct evidence is such that, if true, requires the conclusion that unlawful

23 As indicated above, paragraph 38 of the Complaint fairly can be construed to assert such a claim. And

the immediately preceding paragraph of the Complaint is clear that she is alleging retaliation for her having

requested accommodations. (Doc. No. 1 at 6) (“Plaintiff was subjected to a hostile work environment, and

in retaliated against due to her disability and due to requests for reasonable accommodation.”). At first

blush, Plaintiff here appears to allege that she was retaliation against due to both her being a person with a

disability and her having requested for accommodation. But it would be nonsensical to claim that she was

retaliated (as opposed to discriminated) against due to her disability. A discrimination (including hostile

work environment) claim can be (and typically is) based on protected status (such as having a disability),

but a retaliation claim must be based on protected conduct (such as requesting an accommodation). So

Plaintiff’s sentence cannot sensibly be construed to allege retaliation based on her having a disability;

instead, to make legal sense, it must be only the alleged hostile work environment that is based on her

disability.

retaliation was a motivating factor without any inferences or presumptions.” Banks v. Bosch

Rexroth Corp., 15 F. Supp. 3d 681, 693 (E.D. Ky. 2014), aff'd, 610 F. App'x 519 (6th Cir. 2015)

(citing Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir. 1999)). But Plaintiff does not offer any

direct evidence that she was retaliated against (via the adverse employment action of termination)

based on protected conduct; that is, she does not offer any evidence that would require the

conclusion, without resort to the drawing of inferences, that her termination was prompted by her

having requested an accommodation for her disability. Though Plaintiff’s Response states, “[I]t is

[Plaintiff’s] contention that pretext is largely irrelevant because her termination is premised on a

failure to accommodate which is a direct evidence standard,” (Doc. No. 29 at 25), she simply cites

to no evidence that would “require the conclusion that unlawful retaliation was a motivating

factor” for her termination. Banks, 15 F. Supp. 3d at 693. As Defendant appropriately puts it,

“[t]here is no direct evidence of retaliatory animus in the record, therefore Plaintiff must try to

prove her retaliation claim indirectly.” (Doc. No. 25 at 23). In other words, she is relegated here

to an indirect-evidence theory.

Defendant first argues that

Plaintiff’s retaliation claim is a repackaging of her failure to accommodate

claim and it should be dismissed consistent with this Court’s holding in Wyatt, 2019

WL 6682197, at *16.

In Wyatt, this Court found that a failure to accommodate cannot constitute

retaliation for an employee’s request for accommodation. Id. As this Court

explained, requesting an accommodation inevitably carries the possibility that the

employer will reject the request. Id. As a result, if the alleged retaliatory acts

constitute nothing more than the way in which the defendant rejected Plaintiff’s

accommodation requests, those requested accommodations cannot serve as the

basis of a retaliation claim. Id.

(Doc. No. 25 at 24). But Wyatt is distinguishable because, contrary to Defendant’s implication, the

alleged retaliatory act in the present case does not “constitute [] nothing more than the way in

which the defendant rejected Plaintiff’s accommodation requests.” Wyatt v. Nissan N. Am., Inc.,

No. 3:17-CV-1545, 2019 WL 6682197, at *16 (M.D. Tenn. Dec. 6, 2019), aff'd in part, rev'd in

part and remanded, 999 F.3d 400 (6th Cir. 2021). In Wyatt, the plaintiff claimed she was

experiencing retaliation for having requested reasonable accommodation and her examples of

retaliatory actions included: demanding additional documentation of her need for

accommodations, harassing her about her medical needs, and no longer accommodating her

requests. Id. at *2. In viewing those allegations of retaliation, the undersigned explained, “[E]ach

of Defendant's alleged ADA retaliatory actions constitute, in essence, nothing more than a

particular way Defendant allegedly refused to honor Plaintiff's requests for reasonable

accommodations. And alleging that these actions were in retaliation for her requesting

accommodations is simply a ‘repackaging’ of her failure to accommodate claim.” Id. at *16.

Defendant also cites Pinto v. New York City Admin. for Children’s Servs., where the plaintiff tried

to argue that a failure to accommodate her constituted ADA retaliation, and the court rejected that

position. No. 18-CV-1852 (KBF), 2018 WL 4333990, at *11 (S.D.N.Y. Sept. 11, 2018).

The facts in Wyatt and Pinto are simply different from the facts here. In the present action,

the act of retaliation Plaintiff alleges was not Defendant’s refusal to provide her requested

accommodations, but rather was Defendant’s termination of her from her position as a Production

Supervisor. (Doc. Nos. 1 at 5, 29 at 25). Because Plaintiff alleges that she was terminated because

of her request for accommodation, not merely that Defendant declined to grant her an

accommodation and that this in turn led effectively to her termination, her claim avoids the

problem of Wyatt and Pinto.

However, Defendant can (and does) still challenge Plaintiff’s retaliation claim on the

(alleged) basis that it was unable to accommodate her, which in turn led to—was the legitimate

and non-retaliatory reason for—her termination. This line of reasoning is the foundation of

Defendant’s second argument against Plaintiff’s retaliation claim.

Defendant here does not appear to contest that Plaintiff can establish a prima facie case of

ADA retaliation. Thus, skipping over step one, Defendant proceeds directly to step two (and,

simultaneously, step three), asserting that it “had a legitimate, non-retaliatory reason for her

termination that is not pretextual.” (Doc. No. 25 at 24). As for the second step, Defendant

(unsurprisingly) asserts the same alleged reason for Plaintiff’s termination as discussed above,

implying that it is (in addition to being legitimate) non-retaliatory just as it is non-discriminatory.

With respect to Plaintiff’s retaliation claim, as with her discrimination claim, the Court finds that

Defendant has met its burden of production.

Addressing step three, Defendant asserts that “Plaintiff is unable to establish that

[Defendant’s] legitimate, nonretaliatory [sic] reason for its actions was a pretext for retaliation.”

(Doc. No. 25 at 23). Defendant offers no argument on step three with respect to Plaintiff’s

retaliation claim beyond what it offered at step three with respect to Plaintiff’s discrimination

claim. Similarly, Plaintiff utilizes the same argument for establishing a genuine dispute at to

pretext in her retaliation claim as she did above in her disability discrimination claim.

As the Court concluded above, a reasonable jury could find that Defendant’s proffered

reason was not the actual reason for Plaintiff’s termination. And just as the Court found above that

a reasonable jury also could conclude that discriminatory animus was the real reason for Plaintiff’s

termination, it finds here that a reasonable jury could determine that the real reason was retaliatory

animus against Plaintiff for having requested an accommodation for her disability.24 It is at least

24 One reasonably may ask whether it is appropriate for a Plaintiff to argue, and the Court to find, both that

(i) a jury reasonably could find that the real reason for an adverse employment action was discriminatory

in nature; and (ii) a jury reasonably could find that the real reason for an adverse employment action was

inferable based on the rest of the evidence presented by Plaintiff that the real reason was grounded

in retaliatory animus—that if Defendant felt compelled to offer a pretextual reason, it was driven

by the need to hide a reason steeped in retaliatory animus. Because the Court cannot draw (on the

record before it) an indisputable conclusion one way or the other as to why Defendant terminated

Plaintiff, it holds that it should be left to the jury to decide whether Defendant’s proffered reason

was pretextual and whether the real reason was retaliatory animus. Again, the Court does not

venture to say that a reasonable jury should or would answer both of these questions in the

affirmative, but rather ventures to say only that the instant record reveals that it could do so.

Accordingly, Defendant’s Motion will be denied as to Plaintiff’s claim for retaliation under

the ADA/ADAAA.

V. Remaining Claims

In her Response, Plaintiff indicates she is voluntarily dismissing her second and third

causes of action, brought under the TDA and FMLA respectively. (Doc. No. 29 at 2). The Court

is constrained to note, as a technical matter of proper procedure, that a plaintiff cannot unilaterally

dismiss claims after the opposing party has filed a summary judgment motion. See Fed. R. Civ. P.

retaliatory in nature. After all, these two reasons conflict with one another to a degree; it is one thing to

take adverse action against employee because she is in a protected class, and it is another to take adverse

action against her because she engaged in protected conduct. Suffice it to say, however, that courts regularly

approve this approach, allowing a plaintiff to survive summary judgment on both of these alternative

theories as to the real reason for the adverse action. See e.g. Bryson v. Regis Corp., 498 F.3d 561, 577 (6th

Cir. 2007) (reversing summary judgment when there was a question as to pretext for both an FMLA

retaliation and disability-retaliation claim); Pigott v. Battle Ground Acad., 909 F. Supp. 2d 949, 962 (M.D.

Tenn. 2012) (holding that a fact issue existed as to whether the defendant’s proffered reason for terminating

the plaintiff was actually pretext for retaliation for making complaints of age discrimination and for age

discrimination itself); Finch v. Xavier Univ., 689 F. Supp. 2d 955, 965 (S.D. Ohio 2010) (holding that there

was sufficient evidence on the question of pretext for both an age discrimination and retaliation claim based

on an individual’s termination to proceed to the jury). The Court will do likewise here because it finds that

a reasonable jury could find either discrimination or retaliation was the actual reason for the Defendant’s

adverse employment action. The Court declines to comment on the ramifications at trial of any theory

suggesting that the real reason was a combination of anti-disability animus and retaliatory animus.

41(a)(1)(A)(i). However, a plaintiff can abandon claims by not responding to a motion for

summary judgment on those claims. The Sixth Circuit has stated:

This Court's jurisprudence on abandonment of claims is clear: a plaintiff is

deemed to have abandoned a claim when a plaintiff fails to address it in response

to a motion for summary judgment. See Hicks v. Concorde Career Coll., 449 Fed.

Appx. 484, 487 (6th Cir. 2011) (holding that a district court properly declines to

consider the merits of a claim when a plaintiff fails to address it in a response to a

motion for summary judgment); Clark v. City of Dublin, 178 Fed. Appx. 522, 524–

25 (6th Cir. 2006) (recognizing that the failure to respond properly to motion for

summary judgment arguments constitutes abandonment of a claim); Conner v.

Hardee's Food Sys., 65 Fed. Appx. 19, 24–25 (6th Cir. 2003); see also Colston v.

Cleveland Pub. Library, No. 1:12–CV–204, 2012 WL 3309663, at *2 n. 2 (N.D.

Ohio Aug. 13, 2012) (deeming a claim abandoned and granting summary judgment

when a plaintiff “did not respond or even mention [the] claim in her opposition to

Defendants' motions for summary judgment”).

Brown v. VHS of Michigan, Inc., 545 F. App'x 368, 372 (6th Cir. 2013). Here, Defendant moved

for summary judgment on all of Plaintiff’s claims, including those brought under the TDA and

FMLA (encompassed in Plaintiff’s second and third causes of action). As Plaintiff responded only

to Defendant’s arguments attacking her claims under the ADA (encompassed in her first cause of

action), the Court determines she has abandoned her remaining claims, and summary judgment

will be granted to Defendant on those claims.

CONCLUSION

For the reasons discussed herein, Defendant’s Motion will be GRANTED in part and

DENIED in part. Specifically, Defendant’s Motion is granted as to Plaintiff’s claims contained

in her second and third cause of action, and it will be denied as to Plaintiff’s claims for failure to

accommodate, disability discrimination, and ADA retaliation contained in her first cause of action.

Additionally, to the extent Plaintiff intended to allege a claim for failure to engage in the interactive

process in her first cause of action, this “claim” will not proceed as the Court has determined that

this putative claim actually is not cognizable as an independent cause of action under the ADA.

An appropriate order will be entered.

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE