Leavy v. FedEx Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

BRENDA KAY LEAVY, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-02705-JTF-tmp

)

FEDEX CORPORATION, )

)

Defendant. )

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT, AND DISMISSING PLAINTIFF’S COMPLAINT WITH

PREJUDICE

Before the Court are (1) Plaintiff’s Motion for Summary Judgment, filed on July 6, 2020

(ECF No. 26); and (2) Defendant’s Motion for Summary Judgment, filed on July 25, 2020 (ECF

No. 31). The Chief Magistrate Judge issued a Report and Recommendation on February 18, 2021,

recommending that Plaintiff’s Motion be denied and that Defendant’s Motion be granted. (ECF

No. 48.) Plaintiff timely filed Objections to the Report and Recommendation on March 2, 2021.

(ECF No. 49.) On March 17, 2021, Defendant filed a Response in Opposition to Plaintiff’s

Objections.1 (ECF No. 50.) For the reasons provided below, the Court ADOPTS the Chief

Magistrate Judge’s Report and Recommendation. Plaintiff’s Motion for Summary Judgment is

DENIED. Defendant’s Motion for Summary Judgment is GRANTED. Plaintiff’s Complaint is

DISMISSED with prejudice.

FACTUAL OBJECTIONS

1 The Court will not consider Defendant’s Response in Opposition because it was not timely filed. See LR 72.1(g)(2).

Plaintiff objects to the Chief Magistrate Judge’s determination that Defendant’s proffered

statements of fact should be considered undisputed. (ECF No. 49, 4.) In the Report and

Recommendation, the Chief Magistrate Judge determined that Plaintiff failed to comply with Local

Rule 56.1(a) because Plaintiff did not submit “a separate, concise statement of the material facts.”

(ECF No. 48, 2.) Thus, the Chief Magistrate Judge deemed Defendant’s proffered facts as

undisputed. (Id. at 3.) Plaintiff argues this was error because, as a pro se party, her pleadings

should be held a lower standard. (ECF No. 49, 4–5.) However, whether Plaintiff’s pleadings

should be held to a more favorable standard is not the issue. The issue is whether Plaintiff is

required to adhere to this Court’s Local Rules and the Federal Rules of Civil Procedure in opposing

and moving for summary judgment. The Sixth Circuit has explained that a pro se nonprisoner

litigant “should expect no special treatment which prefers [her] over others who are represented

by attorneys.” Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988). Thus, Plaintiff’s objection

on this point is DENIED.

Second, Plaintiff objects to the Chief Magistrate Judge’s determination that sanctions

against Defendant are unwarranted. (ECF No. 49, 5.) However, Plaintiff provides no authority to

support an imposition of sanctions against Defendant for characterizing Plaintiff’s conviction for

driving while intoxicated as an arrest. Accordingly, Plaintiff’s objection on this issue is DENIED.

Next, Plaintiff asserts Galambos made disparaging comments to Plaintiff. Plaintiff states

that Galambos told Plaintiff that “we’re already accommodating you” and “just because you’re on

FMLA leave doesn’t mean that you can put your work off on others.” (ECF No. 49, 2.) Plaintiff

further states that Galambos instructed co-workers not to copy Plaintiff on communications,

making Plaintiff’s job duties more difficult to perform. (ECF Nos. 49, 2 & 39-6, 3–4.) Ultimately,

as explained in the Report and Recommendation, such allegations are unrelated to the decision to

eliminate Plaintiff’s position and would be insufficient to change the outcome in this case. Plaintiff

has not provided authority to counter this conclusion. Accordingly, this objection is DENIED.

Finally, Plaintiff contends that Defendant considered Plaintiff’s disability when conducting

her 2018 fiscal year performance review, which Galambos issued on May 31, 2018, because

Plaintiff was on FMLA leave at that time. (ECF No. 49, 3.) Further, Plaintiff asserts that

Defendant considered Plaintiff’s purported disability because Galambos referred to the disability

by stating in the review that Plaintiff “had a tough year.” (ECF Nos. 49, 3 & 39-11, 11.) Plaintiff

further states that no other Human Resources employees received a performance review at that

time. (ECF No. 49, 3.) Again, there is no support in the record for these allegations. Further,

these events standing alone would be insufficient to change the Court’s conclusion. Thus,

Plaintiff’s objection on this point is DENIED.

LEGAL STANDARD

Congress passed 28 U.S.C. § 636(b) “to relieve some of the burden on the federal courts

by permitting the assignment of certain district court duties to magistrates.” United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001). Pursuant to the provision, magistrate judges may hear

and determine any pretrial matter pending before the Court, except various dispositive motions.

28 U.S.C. § 636(b)(1)(A). Upon hearing a pending matter, “the magistrate judge must enter a

recommended disposition, including, if appropriate, proposed findings of fact.” Fed. R. Civ. P.

72(b)(1); see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). Any party who

disagrees with a magistrate’s proposed findings and recommendation may file written objections

to the report and recommendation. Fed. R. Civ. P. 72(b)(2).

The district court reviews a magistrate judge’s proposed findings and recommendation.

The standard of review that is applied depends on the nature of the matter considered by the

magistrate judge. See Baker, 67 F. App’x at 310 (citations omitted) (“A district court normally

applies a ‘clearly erroneous or contrary to law’ standard of review for nondispositive preliminary

measures. A district court must review dispositive motions under the de novo standard.”). Upon

review of the evidence, the district court may accept, reject, or modify the proposed findings or

recommendations of the magistrate judge. Brown v. Bd. of Educ., 47 F. Supp. 3d 665, 674 (W.D.

Tenn. 2014); see also 28 U.S.C. § 636(b)(1). The court “may also receive further evidence or

recommit the matter to the [m]agistrate [j]udge with instructions.” Moses v. Gardner, No. 2:14-

cv-2706-SHL-dkv, 2015 U.S. Dist. LEXIS 29701, at *3 (W.D. Tenn. Mar. 11, 2015). “Within 14

days after being served with a copy of the recommended disposition, a party may serve and file

specific written objections to the proposed findings and recommendations.” Fed. R. Civ. P.

72(b)(2). “When no timely objection is filed, the court need only satisfy itself that there is no clear

error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b)

advisory committee notes.

The Court notes that “[o]verly general objections do not satisfy the objection requirement.”

Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Furthermore, “[f]ailure to identify

specific concerns with a magistrate judge’s report results in treatment of a party’s objections as a

general objection to the entire” report and recommendation. McCready v. Kamminga, 113 F.

App’x 47, 49 (6th Cir. 2004). In turn, “[a] general objection is considered the equivalent of failing

to object entirely.” Id. A district judge should adopt the findings and rulings of the magistrate

judge to which no specific objection is filed. Brown, 47 F. Supp. 3d at 674.

ANALYSIS

The Report and Recommendation recommends that Plaintiff’s Motion for Summary

Judgment be denied and that Defendant’s Motion for Summary Judgment be granted. As

explained below, the Court denies Plaintiff’s legal objections and ADOPTS the Report and

Recommendation.

I. Summary Judgment Standard

In evaluating a motion for summary judgment, federal courts are guided by Rule 56 of the

Federal Rules of Civil Procedure, which provides that summary judgment shall be granted “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party can meet this burden by

pointing out to the court that the respondent, having had sufficient opportunity for discovery, has

no evidence to support an essential element of his case. See Fed. R. Civ. P. 56(c); see also Street

v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (“The respondent cannot rely on the

hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must present

affirmative evidence in order to defeat a properly supported motion for summary judgment.”)

(internal quotation marks omitted).

When confronted with a properly supported motion for summary judgment, the nonmoving

party must set forth specific facts showing that there is a genuine dispute for trial. See Fed. R. Civ.

P. 56(c). The nonmoving party must “do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986) (citing DeLuca v. Atl. Refining Co., 176 F.2d 421, 423 (2d Cir. 1949)). Furthermore,

one may not oppose a properly supported summary judgment motion by mere reliance on the

pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, the nonmovant must

present “concrete evidence supporting its claims.” Cloverdale Equip. Co. v. Simon Aerials, Inc.,

869 F.2d 934, 937 (6th Cir. 1989) (citations omitted); see Fed. R. Civ. P. 56(c)(1). The district

court does not have the duty to search the record for such evidence. See Fed. R. Civ. P. 56(c)(3);

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). The nonmovant has the duty

to point out specific evidence in the record that would be sufficient to justify a jury decision in his

favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp., 889 F.2d at 111.

Where—as is the case here—there are “cross-motions for summary judgment, ‘the court

must evaluate each party’s motion on its own merits, taking care in each instance to draw all

reasonable inferences against the party whose motion is under consideration.’” McKay v.

Federspiel, 823 F.3d 862, 866 (6th Cir. 2016) (quoting Taft Broad. Co. v. United States, 929 F.2d

240, 248 (6th Cir. 1991)). “The fact that both parties have moved for summary judgment does not

mean that the court must grant judgment as a matter of law for one side or the other[.]” Craig v.

Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016) (citation omitted).

II. Plaintiff’s Motion for Summary Judgment

A. Title VII Claim

The Chief Magistrate Judge determined that Plaintiff was not entitled to summary

judgment as to any Title VII claim because Plaintiff did not assert such a claim in her Complaint

and acknowledged during her deposition that she was not asserting such a claim. (ECF No. 48,

18.) Plaintiff has not objected to this determination. Accordingly, the Court adopts the Report

and Recommendation and concludes that Plaintiff is not entitled to summary judgment on a Title

VII claim.

B. ADA Claim

Plaintiff moves for summary judgment on her claim under the Americans with Disabilities

Act (“ADA”). The Chief Magistrate Judge determined that Plaintiff is not entitled to summary

judgment on her disability discrimination claim. (ECF No. 48, 24.) In discrimination cases

involving only indirect evidence, the McDonnell Douglas burden-shifting framework applies.

Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th Cir. 2016) (citing Monette v. Elec. Data Sys.

Corp., 90 F.3d 1173, 1179–82 (6th Cir. 1996)). Accordingly, Plaintiff must initially establish a

prima facie case of discrimination by showing that (1) she is disabled, (2) she is otherwise qualified

for the position, with or without reasonable accommodation, (3) she suffered an adverse

employment decision, (4) Defendant knew or had reason to know of Plaintiff’s disability, and (5)

the position remained open while Defendant sought new applicants or Plaintiff was replaced. See

id. at 891–92 (citations omitted).

The Chief Magistrate Judge determined that Plaintiff could not establish a prima facie case

of disability discrimination because Plaintiff could not establish the fifth element—that Plaintiff

was replaced or Defendant sought other applicants. (ECF No. 48, 19–20.) The Chief Magistrate

Judge found that Plaintiff was eliminated as part of a work force reduction. (Id. at 20–21.) A

plaintiff is not terminated in the context of a work force reduction if they are replaced after

termination. See Geiger v. Tower Auto., 579 F.3d 614, 623 (6th Cir. 2009) (citation omitted).

Plaintiff contends that Defendant “unofficially filled” Plaintiff’s former position with Tamara

Turner. Without pointing to any evidence in the record, Plaintiff asserts that Turner works in

Human Resources as a “Project Manager” and sits outside Galambos’ office and performs the

same work as Plaintiff’s former position. (ECF No. 49, 8.) This allegation lacks support in the

record and is purely speculative. Thus, the Court concludes that Plaintiff was terminated as part

of a work force reduction. As a result, to establish the final element of her prima facie case, she

must point to “additional direct, circumstantial, or statistical evidence tending to indicate that the

employer singled out the plaintiff for discharge for impermissible reasons.” Geiger, 579 F.3d at

624 (citation omitted). Plaintiff’s Objections purportedly attempt to make this showing by

pointing to Galambos’ alleged comment to Plaintiff that “[j]ust because you are on FMLA, doesn’t

mean that you can put your work off on others.” (ECF No. 49, 6.) However, the Chief Magistrate

Judge considered this argument and rejected it in the Report and Recommendation. (ECF No. 48,

29.) Plaintiff has pointed to no authority to support deviation from that determination. Plaintiff

provides no evidence beyond this bare allegation that she was impermissibly singled out.

Accordingly, Plaintiff has failed to establish a prima facie case of disability discrimination.

The Chief Magistrate Judge also found that Plaintiff did “not attempt to establish that ‘she

was treated less favorably than a similarly situated, non-protected employee.’” (ECF No. 48, 22

n.10) (quoting Day v. Krystal Co., 471 F. Supp. 2d 874, 884 (E.D. Tenn. 2007)). In her Objections,

Plaintiff alleges she “was treated less-favorably than McCrae, Harrison and Northcott.”2 (ECF

No. 49, 7.) Plaintiff contends that these individuals “were not subjected to an annual performance

review which considered their leave or disabling medical conditions[.]” However, Plaintiff’s fiscal

year 2018 performance review does not support the assertion that her disability and leave were

factors in her performance evaluation. (See ECF No. 26-1, 2.) While these employees may not

have been terminated, Plaintiff adduces no evidence from which the Court can conclude they are

similarly situated. See Jones v. Potter, 488 F.3d 397, 405 (6th Cir. 2007) (“[T]he individuals with

whom the plaintiff seeks to compare his/her treatment must . . . have been subject to the same

standards, and engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer’s treatment of them for it.”

(quoting Gray v. Toshiba Am. Consumer Prods., 263 F.3d 595, 599 (6th Cir. 2001))). Finally,

even if Plaintiff has established a prima facie case, as explained below, Plaintiff is still not entitled

to summary judgment on her disability discrimination claim.

2 Per Plaintiff’s Motion for Summary Judgment, Stacy McCrae, Donna Harrison, and Donna Northcott are Executive

Administrative Assistants for executives in FedEx’s Human Resources department. (ECF No. 26, 4.) McCrae and

Harrison “report to Ms. Judy Edge, FedEx’s Corporate Vice President for Human Resources.” (Id.)

The Chief Magistrate Judge found that even if Plaintiff established a prima facie case of

disability discrimination, Defendant has articulated a legitimate, nondiscriminatory reason for

eliminating Plaintiff’s position. (ECF No. 48, 22.) The Chief Magistrate Judge found Defendant

has explained that Galambos took over Plaintiff’s job duties because Plaintiff made mistakes with

scheduling meetings, failed to effectively communicate with Galambos, and was unreliable with

answering phone calls and emails. (Id. at 22–23.) Plaintiff does not specifically object to this

finding. Therefore, the burden would shift to Plaintiff to show that Defendant’s legitimate,

nondiscriminatory reason is pretextual. Ferrari, 826 F.3d at 892 (quoting Monette v. Elec. Data

Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)). The Chief Magistrate Judge determined that

Plaintiff did not proffer sufficient evidence to support a showing of pretext. (ECF No. 48, 24.)

“[P]laintiff can show pretext in three interrelated ways: (1) that the proffered reasons had

no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or

(3) that they were insufficient to motivate the employer’s action.” Ferrari, 826 F.3d at 895

(quoting Romans v. Mich. Dep’t of Human Servs., 668 F.3d 826, 839 (6th Cir. 2012)). Plaintiff’s

Objections do not attempt to argue that Plaintiff did not commit the mistakes referred to by

Defendant in articulating its legitimate, nondiscriminatory reason. Instead, it appears that Plaintiff

contends that Defendant’s legitimate explanation was not the true reason for the elimination of her

position. Plaintiff speculates that it was illogical to eliminate Plaintiff’s position pursuant to

“staffing effectiveness” because it left Galambos without an Executive Administrative Assistant

while Judy Edge retained two Executive Administrative Assistants—one of whom is part-time.

(ECF No. 49, 7.) Plaintiff provides little detail and no other factual basis for this opinion. This

mere speculative assertion, unsupported by evidence in the record, is insufficient to establish

pretext.

Plaintiff also asserts that Defendant violated its own staffing effectiveness policy because

Defendant allegedly did not attempt to place Plaintiff in another position. (ECF No. 49, 13.)

However, Plaintiff has not explained how this allegation and the fact that Defendant did not hire

Plaintiff to a new position should amount to a finding of pretext. Without factual support showing

that Plaintiff was discriminated against in searching for other jobs with Defendant, the outcome of

the staffing effectiveness process is insufficient to establish pretext.3 See e.g., Adebisi v. Univ. of

Tenn., 341 F. App’x 111, 113 (6th Cir. 2009) (“A plaintiff’s ‘conclusory allegations and subjective

beliefs . . . are wholly insufficient evidence to establish a claim of discrimination as a matter of

law.’” (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992))). For the same reason,

Plaintiff’s unsupported assertions regarding the logic of a reduction in force eliminating her

position are not helpful to Plaintiff. Moreover, Plaintiff argues that Defendant has changed its

reasons for the elimination of Plaintiff’s position since such action was taken. (ECF No. 49, 14–

15.) However, this is not supported by the record, as Defendant has consistently maintained that

Plaintiff’s position was eliminated pursuant to a reduction in force. Accordingly, Plaintiff is not

entitled to summary judgment on her disability discrimination claim.

C. Family and Medical Leave Act (FMLA) Claims

1. FMLA Interference

To establish an FMLA interference claim, Plaintiff must demonstrate that “(1) [she] is an

eligible employee, (2) the defendant is an employer as defined under the FMLA, (3) the employee

was entitled to leave under the FMLA, (4) the employee gave the employer notice of [her] intention

to take leave, and (5) the employer denied the employee FMLA benefits to which [she] was

3 An exhibit identified in Plaintiff’s Objections—the Staffing Effectiveness Policies and Procedures—states: “It is

the responsibility of affected employees to take personal initiative and accountability for pursuing other positions with

guidance from management and Human Resources.” (ECF No. 39-8.)

entitled.” Tennial v. UPS, 840 F.3d 292, 308 (6th Cir. 2016) (citing Walton v. Ford Motor Co.,

424 F.3d 481, 485 (6th Cir. 2005)); see also Wysong v. Dow Chem. Co., 503 F.3d 441, 447 (6th

Cir. 2007) (“If an employer takes an employment action based, in whole or in part, on the fact that

the employee took FMLA-protected leave, the employer has denied the employee a benefit to

which he is entitled.”). The Chief Magistrate Judge concluded that Plaintiff could not establish a

claim for FMLA interference because she was never denied FMLA leave. (ECF No. 48, 25.) In

her Objections, Plaintiff states that Defendant interfered with her FMLA rights “when Galambos

considered both her serious medical condition and leave from work in a performance review issued

on May 31, 2018.” (ECF No. 49, 9.) However, even examining the fiscal year 2018 performance

review, the record is devoid of evidence that Plaintiff’s leave and medical condition were

considered or utilized as factors in assessing Plaintiff’s job performance or eliminating Plaintiff’s

position. (See ECF No. 39-11, 11.) Accordingly, the Court adopts the Chief Magistrate Judge’s

conclusion that Plaintiff has not established a claim for FMLA interference because she was never

denied FMLA benefits and because there is no evidence her FMLA leave was used as a factor in

the decision to eliminate Plaintiff’s position. Plaintiff is thus not entitled to summary judgment

on her FMLA interference claim.

2. FMLA Retaliation

To establish a prima facie FMLA retaliation claim, Plaintiff must demonstrate that (1) she

engaged in activity protected under the Act, (2) her exercise of protected rights was known to

Defendant, (3) Defendant subsequently subjected Plaintiff to an adverse employment action, and

(4) “there was a causal connection between the protected activity and the adverse employment

action.” Tennial, 840 F.3d at 308 (citing Arban v. W. Pub. Corp., 345 F.3d 390, 404 (6th Cir.

2003)). The Chief Magistrate Judge determined that Plaintiff had not established the fourth

element because the temporal proximity between her FMLA leave and the elimination of her

position could not, standing alone, establish a causal connection. (ECF No. 48, 26.) Plaintiff has

not specifically objected to this conclusion and has offered only the temporal proximity and the

performance review as evidence of a causal connection. For the reasons previously provided, the

performance review is not indicative of retaliatory intent. As to the temporal proximity, nearly

four months elapsed between Plaintiff’s return from FMLA leave and the elimination of her

position. Under Sixth Circuit precedent and the facts of this case, the Court adopts the

determination of the Report and Recommendation and concludes that this amount of time does not

demonstrate a causal connection and thus fails to establish a prima facie case of retaliation. See

Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (“Where an adverse

employment action occurs very close in time after an employer learns of a protected activity, such

temporal proximity between the events is significant enough to constitute evidence of a causal

connection . . . . But where some time elapses . . . the employee must couple temporal proximity

with other evidence . . . .”).

Even if the temporal proximity in this case were sufficient to establish a prima facie case

of retaliation under the FMLA, the burden would shift to Defendant to articulate a legitimate,

nondiscriminatory explanation for the elimination of Plaintiff’s position. Skrjanc v. Great Lakes

Power Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). Defendant has met this burden by stating that

Plaintiff’s position was eliminated pursuant to a reduction in force resulting from the determination

that Plaintiff’s position was redundant. Plaintiff would thus be required to show that Defendant’s

legitimate explanation is pretextual. As explained in addressing Plaintiff’s disability

discrimination claim, Plaintiff cannot make this showing. Plaintiff has not identified any

competent evidence tending to indicate that her FMLA leave was considered by Defendant in

eliminating Plaintiff’s position. Accordingly, Plaintiff is not entitled to summary judgment on her

FMLA retaliation claim. Plaintiff’s Motion for Summary Judgment is DENIED.

III. Defendant’s Motion for Summary Judgment

A. ADA Claim

The Chief Magistrate Judge concluded that Plaintiff could not establish a prima facie case

of discrimination under the ADA because Defendant did not replace Plaintiff or leave Plaintiff’s

position open while searching for a replacement. (ECF No. 48, 27–28.) The Report and

Recommendation also determined that, given the reduction in force standard, Galambos’ alleged

statement regarding Plaintiff’s FMLA leave is insufficient to create a genuine dispute of material

fact because it was unrelated to the decision to eliminate Plaintiff’s position. (Id. at 29.) Plaintiff

has not countered this conclusion.

Further, the Chief Magistrate Judge concluded that even if Plaintiff could establish a prima

facie case of discrimination under the ADA, Defendant had articulated a legitimate non-

discriminatory explanation for the elimination of Plaintiff’s position. (ECF No. 48, 29.) The

burden then shifts to Plaintiff “to create a genuine issue as to whether the rationale is pretextual.”

Ferrari, 826 F.3d at 895 (quoting Whitfield v. Tennessee, 639 F.3d 253, 260 (6th Cir. 2011)). In

this regard, the Chief Magistrate Judge rejected Plaintiff’s assertion that Defendant’s explanation

is pretextual because it would be more logical to eliminate another part-time Executive Assistant’s

position. (ECF No. 48, 30.) Plaintiff makes the same argument at this stage of the litigation, and

the Court finds it insufficient because, as the Chief Magistrate Judge concluded, it is entirely

speculative and not supported by any facts. Because Plaintiff has failed to establish a prima facie

case of discrimination, and because Plaintiff has failed to create a genuine issue regarding pretext,

Defendant is entitled to summary judgment on Plaintiff’s disability discrimination claim under the

ADA.

B. FMLA Claims

1. FMLA Interference

The Report and Recommendation recommends summary judgment in favor of Defendant

on Plaintiff’s FMLA interference claim because Plaintiff has not established that she was denied

FMLA benefits as required for the prima facie showing. (ECF No. 48, 31.) In her Objections,

Plaintiff argues that Defendant interfered with her FMLA rights “when Galambos considered both

her serious medical condition and leave from work in a performance review[.]” (ECF No. 49, 9.)

As explained above, examining the performance review in question, there is no basis upon which

to conclude that Galambos used Plaintiff’s medical condition or leave from work as factors in

evaluating Plaintiff’s work performance or eliminating Plaintiff’s position. There is no evidence

that Defendant “somehow used the leave against [Plaintiff] and in an unlawful manner[.]” Wysong

v. Dow Chem. Co., 503 F.3d 441, 447 (6th Cir. 2007) (quoting Bradley v. Mary Rutan Hosp., 322

F. Supp. 2d 926, 940 (S.D. Ohio 2004)). This is insufficient at the summary judgment stage.

Because Plaintiff has not created a genuine issue regarding denial of FMLA benefits, Plaintiff’s

FMLA interference claim fails as a matter of law. Defendant is entitled to summary judgment on

Plaintiff’s FMLA interference claim.

2. FMLA Retaliation

Finally, the Chief Magistrate Judge determined that Defendant is entitled to summary

judgment on Plaintiff’s FMLA retaliation claim because the temporal proximity standing alone

was insufficient to establish a causal connection between Plaintiff’s FMLA leave and the

elimination of Plaintiff’s position. (ECF No. 48, 31–32.) In her Objections, Plaintiff again relies

on the fact that her position was eliminated nearly four months after she returned from FMLA

leave. (ECF No. 49, 11.) As explained above, this length of time alone does not establish—or

raise a genuine dispute as to—a causal connection. See Mickey, 516 F.3d at 525. Further,

Plaintiff’s Objections are not responsive to this conclusion. Accordingly, Plaintiff has not

established a prima facie case of retaliation under the FMLA. Additionally, even if Plaintiff has

established a prima facie case of FMLA retaliation, Defendant has articulated a legitimate,

nondiscriminatory reason for the elimination of Plaintiff’s position—that Plaintiff’s position was

redundant and unnecessary. Plaintiff has not raised a genuine dispute that Defendant’s explanation

is pretextual. Plaintiff’s Objections assert that the elimination of her position rather than other

positions is illogical, but this assertion is entirely speculative and, as explained, is not supported

by any facts.4 Overall, Plaintiff’s attempts to raise a genuine dispute as to pretext are conjecture

and are insufficient. See Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 724 (6th Cir.

2006) (alteration in original) (“It is well settled that ‘[m]ere personal beliefs, conjecture and

speculation are insufficient to support an inference of [] discrimination.’” (quoting Woythal v. Tex-

Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997))). Accordingly, Defendant is entitled to summary

judgment on Plaintiff’s FMLA retaliation claim. Defendant’s Motion for Summary Judgment is

GRANTED.

CONCLUSION

For the reasons provided above, the Court ADOPTS the Chief Magistrate Judge’s Report

and Recommendation. Plaintiff’s Motion for Summary Judgment is DENIED. Defendant’s

4 As explained above, the Court similarly rejects Plaintiff’s attempt to raise a genuine dispute as to pretext by arguing

that Defendant violated its staffing effectiveness policy.

Motion for Summary Judgment is GRANTED. Plaintiff’s Complaint is DISMISSED with

prejudice.5

IT IS SO ORDERED this 23rd day of August, 2021.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

United States District Judge

5 In her Objections, Plaintiff asserts reasonable accommodation discrimination under the ADA. (ECF No. 49, 11.)

However, in her Complaint, Plaintiff checked the “discriminatory conduct” boxes only for termination of employment

and retaliation; Plaintiff left the “[f]ailure to accommodate my disability” box blank. (ECF No. 1, 4.) Accordingly,

Plaintiff cannot now assert a claim for failure to accommodate under the ADA.