Sharif-Mitchell v. Memphis Light Gas & Water

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

NASEEN SHARIF-MITCHELL, )

)

Plaintiff, )

)

)

v. ) No. 20-cv-2400

)

MEMPHIS LIGHT, GAS & WATER )

)

Defendant. )

)

ORDER GRANTING SUMMARY JUDGMENT

This is an employment discrimination case. On August 8,

2022, Defendant Memphis Light, Gas & Water (“MLGW”) moved for

summary judgment on Plaintiff Naseen Sharif-Mitchell’s claims

for employment discrimination and retaliation in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in Employment

Act of 1967 (“ADEA”), 29 U.S.C. §§ 621–634, and the Americans

with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12117.

(ECF No. 55 (the “Motion”).) Defendant renewed its Motion on

September 22, 2022. (ECF No. 59.) Plaintiff responded on October

21, and Defendant replied on November 4. (ECF Nos. 65, 69.) The

Motion is now ripe for decision. For the following reasons, the

Motion, ECF No. 55, is GRANTED.

I. Background

Plaintiff was employed by MLGW in various positions

beginning in 2004. (ECF No. 1 at 2.) Plaintiff worked as a teller

and service adviser until 2016, when she secured a position as

a water treatment operator. (ECF No. 56-1, Pl. Dep. 26:18–30:8.)

In that role, Plaintiff replenished stocks of chemicals,

backwashed filters, tested water quality, and loaded and unloaded

supplies. (Id. at 35:1–37:10.) Plaintiff worked primarily at the

Sheehan Pumping Station and reported to Roland Person, her

supervisor, and Wendel Hanks, the foreman. (Id. at 33:14–18,

36:2–6.)

Plaintiff says that she began to experience retaliation and

discrimination based on her age and race after starting as a

water treatment operator. Plaintiff is African-American and was

approximately forty-nine years old at the time of the alleged

discrimination. (Id. at 10:4, 145:24–146:3.) She cites a number

of examples which she says demonstrate MLGW’s discriminatory

practices. Plaintiff says that she was sometimes required to

move and lift heavy bags of chemicals without assistance while

a younger, white coworker stayed in the office to do paperwork.

(Id. at 38:1–41:20.) When the younger, white coworker otherwise

would have been scheduled to work at one of the more difficult

water treatment plants, the coworker was instead directed to do

paperwork at the central office. (Id. at 46:16–47:11.) Plaintiff

recounts an instance in which she and other African-American

coworkers were berated and made to sign a disciplinary form

because they did not call the foreman to let him know they had

finished their shift, although Plaintiff had not been told she

needed to make such a call. (Id. at 145:21–147:4.) Plaintiff

also asserts that her requests for overtime or for time off were

treated less favorably than those of her white colleagues. (Id.

at 147:22–149:15.) In addition to discrimination based on race

and age, Plaintiff claims that certain challenges she faced,

such as her difficulties in getting overtime and off time and

the instance in which she was berated by the foreman, were

retaliation for filing grievances with her union. (Id. at 145:24–

147:7, 159:14–160:4.)

Plaintiff’s grievances increased when she was injured in a

workplace accident. On February 11, 2018, Plaintiff was loading

wooden pallets onto a company truck when she saw a rooster

rushing toward her. (Id. at 57:10-23, 77:15-17.) Startled,

Plaintiff dropped one of the wooden pallets, injuring her foot.

(Id. at 57:10-23.) Plaintiff did not report her injury at that

time and completed her work for the day. (Id. at 61:1-16,

73:21-24.) Three days later, on February 14, Plaintiff was seen

by a physician, who placed Plaintiff’s injured foot in a “boot”

and provided a doctor’s note saying that Plaintiff should be

placed on light duty. (Id. at 68:4-6, 71:24-73:12, 79:1-8; ECF

No. 56-5.) When plaintiff reported to work the next day, her

supervisor sent her to Defendant’s medical services office, where

she filled out a report of her injury. (ECF No. 56-1, Pl. Dep.

73:9-74:6.) Plaintiff was placed on unpaid leave and remained on

leave until her eventual resignation. (ECF No. 56-7, Eric Conway

Decl. at 2.)

After Plaintiff reported her injury, a workers’

compensation claim was filed on her behalf. (ECF No. 56-1, Pl.

Dep. 83:13-84:16.) The claim was denied because the examining

physician determined that, in light of Plaintiff’s pre-existing

injury to the same foot, Plaintiff’s disability was not primarily

caused by a work-related injury. (Id. at 83:2-84:16.) Plaintiff

did not appeal. (Id.) Although Plaintiff did not receive workers’

compensation benefits and was not paid during her leave by MLGW,

she began receiving short-term disability benefits in March 2018

from MLGW’s insurer. 1 (Id. at 95:16-23, 97:20-98:17.)

Eventually, the short-term disability benefits lapsed, and

Plaintiff’s application for long-term benefits was denied.2 (Id.

at 122:17-123:6.) A few days after that denial, on July 24, 2019,

Plaintiff resigned. (Id. at 130:13-131:2.)

1 Those benefits, according to Plaintiff, were significantly less than

what she had been receiving from MLGW. (ECF No. 56-1, Pl. Dep.

120:13-23.)

2 It is not clear from the record when Plaintiff’s short-term

disability benefits ended. (Compare ECF No. 56-2, and ECF No. 57 at

5, 7, with ECF No. 56-1, Pl. Dep. 120:3-16.)

On December 1, 2018 -- while Plaintiff was on leave and

before her resignation -- Plaintiff met with Linda Ford, MLGW’s

Human Resources Compliance Coordinator, and Vernica Davis,

MLGW’s Medical Services Coordinator. (ECF No. 56-8, Linda Ford

Dep. 38:23-40:1.) The purpose of the meeting was to ensure

compliance with the ADA by reviewing Plaintiff’s job description

and deciding what accommodations Plaintiff might need in her

work. (Id.) During the meeting, Plaintiff admitted that she would

be unable to perform many of her job functions, such as loading

and unloading, and would need frequent breaks when walking or

climbing stairs. (ECF No. 56-6, Vernica Davis Dep. 26:2-19; ECF

No. 56-1, Pl. Dep. 91:6-93:14.) Plaintiff suggested that another

employee be assigned to help her complete the tasks she could

not do alone. (ECF No. 56-1, Pl. Dep. 92:4-11.) Davis and Ford

transmitted that suggestion to MLGW’s ADA committee, which

rejected it. (ECF No. 56-8, Linda Ford Dep. 41:15-42:20.) The

committee did not discuss other possible accommodations. (ECF

No. 56-6, Vernica Davis Dep. 27:20-28:21.)

Sometime during 2018 or 2019, another water treatment

operator, Tiffany Carson, was injured by a fall from a ladder

while on the job. (ECF No. 56-12, Tiffany Carson Dep. 15:18-22,

20:13-27:12.) Carson is white and was approximately thirty-eight

or thirty-nine years old at the time of her fall. (Id. at 6:20-22,

43:17-23.) Carson was approved for light duty while she recovered

and spent less than ninety days in a secretarial-type position

before returning to her regular duties. (Id. at 27:24-28:22.)

According to MLGW, the reason that Carson was placed on light

duty but Plaintiff was placed on unpaid leave was that Carson’s

workers’ compensation claim was approved and Plaintiff’s was

rejected. (ECF No. 56-6, Vernica Davis Dep. 31:17-32:17.) MLGW

explains that it has a policy of granting light duty only to

those who have a workplace-related injury, as determined by

whether the injured employee is eligible for workers’

compensation. MLGW’s Manager of Employee Services and Talent

Acquisition and Medical Services Coordinator both provided sworn

statements to that effect. (ECF No. 56-6 at 9:18-20, 32:4-17;

No. 56-7 at 1-2.) Although MLGW’s written policies do not contain

an explicit statement that light duty is unavailable to those

who have been denied workers’ compensation, its policy on

“Workers’ Compensation Program (Occupational Injury/Illness)”

makes provision for light duty. (ECF No. 56-7 at 4-5, 13.) The

provision for light duty is absent from the parallel written

policy covering “Sick Leave, Short Term Disability, and Long

Term Disability (Non-Occupational Injury/Illness).” (ECF No. 56-

7 at 18-31.)

II. Jurisdiction

Plaintiff’s causes of action arise under Title VII, the

ADA, and the ADEA, which are federal statutes. The Court has

subject matter jurisdiction under 28 U.S.C. § 1331.

III. Standard of Review

Under Federal Rule of Civil Procedure 56, a court must grant

a party’s motion for summary judgment “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.” The moving

party can meet this burden by showing that the nonmoving party,

having had sufficient opportunity for discovery, lacks evidence

to support an essential element of her case. Fed. R. Civ. P.

56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th

Cir. 2018).

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). “A ‘genuine’ dispute exists when the plaintiff

presents ‘significant probative evidence’ ‘on which a reasonable

jury could return a verdict for her.’” EEOC v. Ford Motor Co.,

782 F.3d 753, 760 (6th Cir. 2015) (quoting Chappell v. City of

Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). “[I]n order to

survive a summary-judgment motion, the non-moving party ‘must do

more than simply show that there is some metaphysical doubt as

to the material facts.’” Lossia v. Flagstar Bancorp, Inc., 895

F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A scintilla

of evidence favoring the nonmoving party does not establish a

genuine issue of material fact. Id.

The nonmoving party must point to concrete evidence on which

a reasonable juror could return a verdict in her favor; a

district court will not “wade through and search the entire

record for some specific facts that might support the nonmoving

party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108,

111 (6th Cir. 1989); accord Parker v. Winwood, 938 F.3d 833, 839

(6th Cir. 2019); Fed. R. Civ. P. 56(c)(3).

In evaluating a motion for summary judgment, a court must

view all facts in the light most favorable to the nonmoving party

and must draw all reasonable inferences in the nonmoving party’s

favor. Audi AG v. D’Amato, 469 F.3d 534, 545 (6th Cir. 2006).

Courts will not, however, make strained or unreasonable

inferences. Id.

Although summary judgment must be used carefully, it “is

‘an integral part of the Federal Rules as a whole, which are

designed to secure the just, speedy, and inexpensive

determination of every action’ rather than a ‘disfavored

procedural shortcut.’” FDIC v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477

U.S. 317, 327 (1986)).

IV. Analysis

A. Limitations Period

Employment discrimination claims under Title VII, the ADEA,

and the ADA are all subject to the limitations period in 42

U.S.C. § 2000e-5. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th

Cir. 2001) (Title VII and ADEA); Booth v. Nissan N. Am., Inc.,

927 F.3d 387, 392 (6th Cir. 2019) (ADA). That statute provides

that a charge of discrimination must be filed with the Equal

Employment Opportunity Commission (EEOC) within 180 days of the

occurrence of the allegedly unlawful employment practices. 42

U.S.C. § 2000e-5(e)(1). If, however, the charge of

discrimination is also filed with “a State or local agency with

authority to grant or seek relief from” the unlawful employment

practice, the employee has 300 days to file. Id. Once a charge

of discrimination is filed, the EEOC will generally issue a

right-to-sue letter, whereupon the aggrieved employee has ninety

days to file suit.3 Id. § 2000e-5(f)(1).

3 Plaintiff’s right-to sue letter is dated March 4, 2020. (ECF No.

1-3.) Plaintiff brought suit on June 5, 2020. (ECF Nos. 1.) Although

that time interval is greater than ninety days, it is within the

additional five-day grace period provided in this circuit for mailing.

See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d

552, 557-58 (6th Cir. 2020).

Plaintiff filed her charge of discrimination with the

Tennessee Human Rights Commission, which is empowered to address

claims of race, age, and disability discrimination. ECF No. 1-

2; see Booth, 927 F.3d at 392; Tartt v. City of Clarksville, 149

F. App’x 456, 460 (6th Cir. 2005). Plaintiff’s charge and this

lawsuit are limited to conduct occurring up to 300 days before

the filing of her charge and no earlier.

Plaintiff’s charge of discrimination was filed with the

EEOC on February 21, 2019. (ECF No. 1-2.) She may sue only for

discrimination or retaliation occurring on or after April 27,

2018. Because Plaintiff’s injury occurred in February 2018 and

she began her period of leave shortly thereafter, she cannot sue

for any allegedly discriminatory or retaliatory conduct which

occurred on the job. Only conduct from April 27, 2018 or later,

when Plaintiff was already on leave, can form the basis of a

non-time-barred claim.4

B. Abandonment of Claims

MLGW asserts in its summary judgment reply brief that

Plaintiff has abandoned all of her claims by failing to respond

to the Motion adequately. (ECF No. 69 at 2.) The Sixth Circuit’s

“jurisprudence on abandonment of claims is clear: a plaintiff is

deemed to have abandoned a claim when a plaintiff fails to

4 Plaintiff acknowledges in her complaint that many of her allegations

of discrimination are outside the 300-day window. (ECF No. 1 at 3.)

address it in response to a motion for summary judgment.” Brown

v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013);

see also Nathan v. Great Lakes Water Auth., 992 F.3d 557, 564

n.1 (6th Cir. 2021) (stating that claims had been abandoned by

failure to brief in response to summary judgment motion before

district court); Murphy v. Ohio State Univ., No. 2:11-cv-238,

2012 U.S. Dist. LEXIS 140014, at *10-11 (S.D. Ohio Sept. 28,

2012) (collecting cases). A district court is not required to

address an abandoned claim on the merits. See Hicks v. Concorde

Career Coll., 449 F. App’x 484, 487 (6th Cir. 2011).

Although the complaint states claims for discrimination and

retaliation under Title VII, the ADEA, and the ADA, none of these

statutes is cited or even mentioned in Plaintiff’s response to

the summary judgment motion. (ECF Nos. 1, 65.) Plaintiff’s brief

cites only two Tennessee state court cases, which are used to

support propositions pertaining to the standard for summary

judgment and the interpretation of contracts under Tennessee

law. (ECF No. 65 at 2.)

Plaintiff makes some mention of a relevant legal framework

in that she “gladly adopts the Defendant’s description of the 4

step test for a discrimination test [sic].” (Id. at 5.) Plaintiff

does not say, however, which statute she is referring to or which

four-prong test she is adopting. (Id.) The matter is complicated

by Plaintiff’s assertion that the first three prongs of the test

were conceded by MLGW -- a statement which is not accurate about

any of the four-part tests MLGW cites in its Motion.5 (ECF No.

65 at 5; No. 56 at 10-14, 17-19.) Plaintiff’s response to the

Motion is not a careful, detailed engagement with the analytical

frameworks established by Sixth Circuit precedent to assess

alleged employment discrimination.

Despite these shortcomings, Plaintiff’s claims of

discrimination are not abandoned. Courts finding that claims are

abandoned have more often done so when a claim is completely,

rather than partially, omitted from a response to a summary

judgment motion. See Conner v. Hardee’s Food Sys., Inc., 65 F.

App’x 19, 24 (6th Cir. 2003) (finding claim abandoned where

plaintiffs “completely failed to respond” to summary judgment

arguments); Colston v. Cleveland Pub. Libr., No. 1:12-CV-204,

2012 U.S. Dist. LEXIS 113527, at *4 n.2 (N.D. Ohio Aug. 13, 2012)

(ruling claim was abandoned where summary judgment response “did

not respond or even mention this claim”); Anglers of the Au Sable

v. U.S. Forest Serv., 565 F. Supp. 2d 812, 839 (E.D. Mich. 2008)

5 Plaintiff referred to the test she meant to adopt as a test “for

discrimination,” as opposed to retaliation, and argued that she

satisfied the fourth prong because she “was treated differently than

another employee who had also been hurt at work,” which is similar to

the fourth prong of the tests for a Title VII or ADEA prima facie case

of discrimination. (ECF No. 65 at 6; see also No. 56 at 10, 13.) From

this, it can be inferred that Plaintiff probably means to adopt the

four-part test for a prima facie case of racial discrimination under

Title VII, the similar test for a prima facie case of age

discrimination under the ADEA, or both.

(holding that plaintiffs had abandoned claim because they “did

not write a word about the . . . issue”). But see Murphy, 2012

U.S. Dist. LEXIS 140014, at *10-11 (holding Title VII claim

abandoned where plaintiff addressed claim by setting forth

standard, but failed to make argument under that standard).

Plaintiff makes at least some reference to the legal

framework to test for discrimination under Title VII and the

ADEA. (ECF No. 65 at 5-6.) Her discussion of Defendant’s policy

of giving preferential treatment to employees whose workers’

compensation claims are granted is relevant to her ADA

discrimination claim. (See id. at 3-5.) Plaintiff’s claims of

discrimination have not been abandoned.

Plaintiff’s claims of retaliation have been abandoned.

MLGW’s Motion clearly asserted grounds for summary judgment on

all retaliation claims, arguing, among other bases, that there

was no evidence supporting a causal connection between any

protected activity and an adverse action taken against Plaintiff.

(ECF No. 56 at 19.) Plaintiff’s response to the Motion does not

respond to that argument. (See ECF No. 65.) She does not mention

retaliation at all. (Id.) Plaintiff has abandoned her claims of

retaliation under Title VII, the ADEA, and the ADA. The Court

will not consider those claims on the merits.

C. Title VII Discrimination

A plaintiff may support a claim of discrimination under

Title VII through either direct or circumstantial evidence.

Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606 (6th

Cir. 2019). If the plaintiff relies on circumstantial evidence,

her claims are evaluated under the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973).

Redlin, 921 F.3d at 606. Under that framework, the plaintiff

must first establish a prima facie case of discrimination. Id.

That burden “is not an onerous one” and may be satisfied by

showing that the plaintiff “1) is a member of a protected class;

2) was qualified for his job; 3) suffered an adverse employment

decision; and 4) was replaced by a person outside the protected

class or treated differently than similarly situated non-

protected employees.” Id. at 606–07 (internal quotation marks

omitted). If the plaintiff can establish a prima facie case,

“the burden shifts to the defendant ‘to articulate some

legitimate, nondiscriminatory reason for’ the adverse employment

action.” Id. at 607 (quoting White v. Baxter Healthcare Corp.,

533 F.3d 381, 397 n.9 (6th Cir. 2008)). If the defendant does

so, the burden shifts again to the plaintiff, which must put

forth evidence that the proffered nondiscriminatory reasons are

a pretext for discrimination. Id.

There is no genuine dispute of material fact that could

allow Plaintiff’s Title VII discrimination claim to proceed to

trial. Because Plaintiff does not cite any direct evidence of

racial discrimination, her claim must be analyzed under the

McDonnell Douglas framework. Redlin, 921 F.3d at 606. Assuming

Plaintiff can establish a prima facie case of racial

discrimination, her Title VII claim still fails because MLGW has

produced a legitimate, nondiscriminatory reason for its decision

not to grant Plaintiff light duty.6 MLGW has provided extensive

evidence that, under its established policies, it grants light

duty only to those who sustain a workplace-related injury. That

grant is determined by whether the injured employee’s workers’

compensation claim is approved. The existence of the policy is

supported both by the sworn statements of MLGW officials and by

documentary evidence. (ECF No. 56-6 at 9:18-20, 32:4-17; No. 56-

7 at 1-2, 4-5, 13, 18-31.) Defendant makes a strong showing that

6 MLGW’s failure to assign Plaintiff to light duty appears to be the

only possible adverse action about which Plaintiff can complain. All

potential adverse actions from before April 27, 2018 are time barred.

Although Plaintiff alleged in her complaint that her resignation was

a constructive discharge, ECF No. 1 at 7, she makes no mention of that

theory in her summary judgment briefing, ECF No. 65, and thus abandons

the issue. Plaintiff’s response to the Motion briefly mentions an

individual in a wheelchair who allegedly received unspecified

accommodations, but Plaintiff fails to explain what accommodations

were provided to that individual and does not state that the failure

to provide those unspecified accommodations was the adverse action

taken against her. (Id. at 2.) The refusal to assign Plaintiff to

light duty will thus be treated as the adverse action for which MLGW

must produce a legitimate, nondiscriminatory reason because Plaintiff

fails to identify any other potential adverse action.

its decision not to grant Plaintiff light duty was based not on

race, but on its policy of making such assignments only to those

deemed eligible for workers’ compensation.

Although Plaintiff suggests that MLGW’s policy violates the

ADA, that has no effect on whether the policy is a legitimate,

nondiscriminatory reason under Title VII. In a Title VII race

discrimination claim, the “ultimate question” is whether “the

defendant intentionally discriminated against the plaintiff” on

the basis of race. Tex. Dep’t of Cmty. Affs. v. Burdine, 450

U.S. 248, 253 (1981). Showing that an employer’s policy is

impermissible under a law unrelated to racial discrimination,

such as the ADA, does not prove that the employer’s reliance on

that policy must have been discrimination based on race. See

Harrigan v. Dana Corp., 612 F. Supp. 2d 929, 944 (N.D. Ohio 2009)

(“[A]lthough Defendant’s reliance on its policy was mistaken and

unlawful, it is still a nondiscriminatory explanation.”);

McClain v. Detroit Ent., LLC, 458 F. Supp. 2d 427, 438 (E.D.

Mich. 2006) (finding, in McDonnell Douglas burden-shifting

context, that employer’s leave policy violated the FMLA, but

that applying that policy was nevertheless a nonretaliatory

reason for employee’s discharge); Hoffman v. Pro. Med Team, 394

F.3d 414, 422 (6th Cir. 2005) (stating the circuit’s Title VII

cases “emphasize that the employer’s reason for discharge does

not have to be a good reason . . . [but] must merely be based on

grounds not proscribed by the statute”). MLGW’s reliance on a

well-established, racially neutral workplace policy is a

nondiscriminatory reason for MLGW’s denial of light duty

notwithstanding Plaintiff’s suggestion that the policy is

incompatible with the ADA.

Given that MLGW has provided a legitimate,

nondiscriminatory reason for the adverse action of denying light

duty, the burden shifts to Plaintiff to produce evidence that

MLGW’s reason is a pretext for racial discrimination. See Redlin,

921 F.3d at 607. Plaintiff fails to do so. There is no evidence

of any racially biased application of the policy. Plaintiff does

not identify any white worker -- or, indeed, any individual --

who received light duty despite having a workers’ compensation

claim denied. She does not point to any statement or indication

in the record that MLGW or its officials considered any factor

other than the denial of her workers’ compensation claim in

denying light duty.

Plaintiff correctly notes that MLGW’s written policies do

not contain an explicit statement that light duty is available

only to those whose workers’ compensation claims are approved.

(ECF No. 65 at 5.) Nevertheless, the written policies support,

rather than undermine, MLGW’s narrative that light duty is

available only to those whose workers’ compensation claims are

accepted. MLGW’s written policies are structured so that workers’

compensation matters and light duty are placed in one policy,

and non-occupational injuries and short-term disability are

placed in another policy. (See ECF No. 56-5 at 4-31.) That

clearly indicates that injuries resulting in approved workers’

compensation claims are treated differently than other injuries.7

Plaintiff has not created a genuine dispute of material

fact about whether MLGW’s reason for denying her light duty was

a pretext for racial discrimination. MLGW is entitled to summary

judgment on Plaintiff’s claim of racial discrimination under

Title VII.

D. ADEA Discrimination

The framework for evaluating claims of ADEA discrimination

is closely related to the Title VII framework. Deleon v.

Kalamazoo Cnty. Rd. Comm’n, 739 F.3d 914, 918 (6th Cir. 2014)

(“Generally, discrimination claims brought under Title VII and

the ADEA are analyzed under the same framework.”); see also

Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir. 1996)

(“[C]ourts routinely employ Title VII and ADEA case law

interchangeably.”). Absent direct evidence of discrimination, a

plaintiff may establish a prima facie case of age discrimination

7 The portion of the written policy dealing with light duty provides

that, after ninety days of light duty, “the employee will be placed

off work and their salary will be adjusted to the amount required

under the Tennessee Workers’ Compensation Law.” (ECF No. 56-7 at 13.)

The policy unambiguously shows that it is expected that those on light

duty will be subject to the workers’ compensation law.

under the ADEA by showing that “(1) he was a member of the

projected class, i.e., 40 years old or older, (2) he suffered an

adverse employment action, (3) he was otherwise qualified for

the position, and (4) he was replaced by a substantially younger

employee.” Deleon, 739 F.3d at 918. “In disparate treatment

cases, the fourth element may be replaced with the requirement

that the plaintiff show she was treated differently from

similarly-situated individuals.” Policastro v. Nw. Airlines,

Inc., 297 F.3d 535, 539 (6th Cir. 2002).

Once a plaintiff has made a prima facie case of

discrimination, the McDonnell Douglas framework applies.

Spengler v. Worthington Cylinders, 615 F.3d 481, 491 (6th Cir.

2010). The employer may attempt to show a non-culpable reason

for its actions, and the employee may then seek to demonstrate

that the proffered reason is a pretext. Id.

For the same reasons that Plaintiff cannot prevail on her

Title VII discrimination claim, she cannot show a genuine dispute

of material fact that would allow her to proceed with her ADEA

claim. Allegations of discrimination occurring before April 2018

are time-barred. Assuming Plaintiff can make a prima facie case,

MLGW has carried its burden of producing a legitimate,

nondiscriminatory reason for its failure to assign Plaintiff to

light duty. The sworn statements and written policies already

discussed show that MLGW failed to provide Plaintiff with a light

duty assignment because its policy restricted access to such

assignments to employees with a successful workers’ compensation

claim. (ECF No. 56-6 at 9:18-20, 32:4-17; No. 56-7 at 1-2, 4-5,

13, 18-31.) Plaintiff does not identify any evidence tending to

show that Defendant’s policy was a pretext for age

discrimination. Plaintiff has failed to identify a genuine

dispute of material fact, and MLGW is entitled to judgment as a

matter of law on Plaintiff’s ADEA discrimination claim.

E. ADA Claim for Failure to Accommodate

The ADA’s text provides that “[n]o covered entity shall

discriminate against a qualified individual on the basis of

disability in regard to . . . [the] terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). Discrimination

is defined to include “not making reasonable accommodations to

the known physical or mental limitations of an otherwise

qualified individual with a disability.” Id. § 12112(b)(5).

The employee bears the initial burden of making a prima

facie case of a failure to accommodate. Morrissey v. Laurel

Health Care Co., 943 F.3d 1032, 1038 (6th Cir. 2019). An employee

may establish a prima facie case by showing that, at the time of

the alleged discrimination, (1) she was disabled under the ADA,

(2) she was otherwise qualified for her position, with or without

reasonable accommodation, (3) the employer knew or had reason to

know about her disability, (4) she requested an accommodation,

and (5) the employer failed to provide the necessary

accommodation. Brumley v. UPS, 909 F.3d 834, 839 (6th Cir. 2018).

Because the failure to accommodate is itself the discriminatory

act, these claims necessarily involve direct evidence, and the

McDonnell Douglas framework does not apply. Id. Once a plaintiff

makes a prima facie case of a failure to accommodate, the burden

shifts to the employer to show that the “proposed accommodation

will impose an undue hardship.” Id. (quoting Kleiber v. Honda of

Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007)).

To carry her burden of showing that she is “otherwise

qualified” for the job she holds or seeks, an employee must show

that she “can perform all of the essential functions of her job,

whether accommodated or not.” Williams v. AT&T Mobility Servs.,

LLC, 847 F.3d 384, 391 (6th Cir. 2017); see also 42 U.S.C.

§ 12111(8) (defining “qualified individual” as “an individual

who, with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires”). An employee may also argue that

she is qualified for a position with one or more allegedly

essential functions eliminated, in which case the employer bears

the burden of showing that the challenged function is essential.

Kleiber, 485 F.3d at 869.

Plaintiff cannot establish a prima facie case of failure to

accommodate.8 Although Plaintiff, in her response to the Motion,

does not specifically identify the accommodations to which she

believes she was entitled, ECF No. 65, two potential

accommodations are apparent from the record.

First, in her meeting with MLGW officials, Plaintiff

suggested she be provided with an assistant to help her do her

water treatment operator job. The Court construes Plaintiff’s

brief as arguing MLGW impermissibly failed to accommodate her by

refusing to provide an assistant. Plaintiff cannot make a prima

facie case under this theory, however, because she was not

qualified for the water treatment operator position and because

the proposed accommodation was not reasonable.

Second, Plaintiff appears to argue that she should have

been assigned to light duty, as was her coworker, Tiffany Carson.9

8 Plaintiff spends much of her brief arguing about MLGW’s policies,

which she contends are not adequate reason to treat her differently

than other injured or disabled employees. (ECF No. 65 at 3-5.) It is

generally true that reliance on an official policy alone does not

excuse conduct that contravenes the ADA. E.g., Morrissey, 946 F.3d at

303 (explaining that blanket policy of refusing accommodation for those

suffering non-work-related disabilities would not excuse ADA

violation). Arguing that Defendant’s policy cannot excuse an ADA

violation is no substitute for showing an ADA violation in the first

place.

9 Although Plaintiff does not specifically mention light duty in her

summary judgment briefing, she spends much of her brief arguing that

MLGW’s policies were not an adequate basis to treat her differently

than other employees who were allegedly accommodated. (ECF No. 65 at

3-5.) That argument most clearly applies to Tiffany Carson. She

received light duty after a workplace injury, and MLGW concedes she

was treated differently because of Defendant’s policy of giving light

That proposed accommodation was not reasonable, however, because

Plaintiff was not entitled to have a temporary light duty

position converted to a permanent position for her benefit. To

the extent Plaintiff sought light duty as a temporary

accommodation, her argument fails because (1) she did not show

that she requested light duty when she could reasonably have

been expected to recover by the end of the temporary light duty,

and (2) she did not respond to MLGW’s argument that medical leave

with short-term disability benefits was a reasonable alternative

accommodation.

1. Plaintiff Was Not Qualified for the Water Treatment

Operator Position, and Her Proposed Accommodation

Was Not Reasonable.

After her accident, Plaintiff was not qualified for her

position as a water treatment operator. In her December 2018

discussion with MLGW officials about the job functions she would

be able to perform, Plaintiff confirmed that she would have

duty to those who receive workers’ compensation. (ECF No. 56-12,

Tiffany Carson Dep. 20:7-23; No. 56-6, Vernica Davis Dep. 31:17-32:17.)

Plaintiff briefly alludes to an individual in a wheelchair at MLGW’s

call center who allegedly received unspecified accommodations. (ECF

No. 65 at 2.) By failing to brief any accommodations that individual

received or why Plaintiff was entitled to the same, Plaintiff has

abandoned any argument relying on the unspecified accommodations to

the wheelchair-bound individual. To the extent Plaintiff argues she

should have been accommodated with a job in the call center like the

individual in a wheelchair, Plaintiff’s argument fails because she

does not assert, much less cite evidence, that any position at the

call center was vacant when she was seeking accommodation. See Kleiber,

485 F.3d at 870 (concluding that reasonable jury could not conclude

that vacancy existed because plaintiff had provided no evidence of

one).

difficulty lifting, navigating steps, and loading and unloading.

(ECF No. 56-1, Pl. Dep. 91:14-93:14.) One MLGW official said,

and Plaintiff does not dispute, that during the meeting,

Plaintiff indicated the only function of her job she could

perform unaided was driving from treatment plant to treatment

plant. (ECF No. 56-8, Linda Ford Dep. 40:9-41:2.) Numerous

months after her injury, Plaintiff’s physician’s instructions

restricted her from lifting more than twenty pounds. (ECF No.

56-1, Pl. Dep. 99:7-15.) Plaintiff does not dispute that many

manual tasks, such as lifting and pouring chemicals, cleaning

filters, and loading and unloading supplies, are essential

functions of the water treatment operator position. (Id. at

34:18-35:19.) Plaintiff indicated she would be unable to perform

many of these functions without accommodation. (Id. at

91:14-92:18.) Absent an accommodation, then, Plaintiff was not

qualified for the water treatment operator position because she

cannot fulfill its essential functions.

Plaintiff’s proposed accommodation is not reasonable. The

only potential accommodation identified by Plaintiff to allow

her to perform the water treatment operator job was the provision

of another individual during Plaintiff’s shifts to assist or

substitute in completing the necessary tasks. (Id. at 92:4-18.)

Although a reasonable accommodation might include “job

restructuring, part-time or modified work schedules, [or]

reassignment to a vacant position,” 42 U.S.C. § 12111(9), the

ADA “does not require employers to create a new position for a

disabled employee who can no longer perform the essential

functions of his job.” Smith v. Ameritech, 129 F.3d 857, 867

(6th Cir. 1997). The ADA does not “require employers to

accommodate individuals by shifting an essential job function

onto others.” Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d

719, 729 (6th Cir. 2000). Plaintiff’s proposed accommodation

would force Defendant to either create a new position -- that of

an additional, assistant water treatment operator to help

Plaintiff complete her job -- or reallocate Plaintiff’s duties

to other employees. Either alternative is more than the ADA

requires. Because Plaintiff was unable to perform her essential

job functions without accommodation and because the only proposed

accommodation that might allow her to complete the functions of

the water treatment operator position was not reasonable,

Plaintiff was not qualified under the ADA for the position of

water treatment operator.

2. Plaintiff Has Failed to Show an Entitlement

to Light Duty.

Plaintiff’s only remaining theory to support a failure-to-

accommodate claim is that she was wrongly denied reassignment to

light duty. Plaintiff’s fellow water treatment operator, Tiffany

Carson, was assigned to light duty after a workplace injury.

(ECF No. 56-12, Tiffany Carson Dep. 20:7-23.) During that time,

Carson did essentially sedentary work, completing paperwork

relating to the use of and billing for certain water meters.

(Id. at 27:24-29:3.) Because of the significant differences in

responsibilities between the water treatment operator position

and Carson’s experience with light duty, light duty is not simply

a modification of the water treatment operator position, but a

different job entirely. The Court will thus analyze Plaintiff’s

request for light duty under caselaw pertaining to ADA requests

for reassignment to an alternative position.10

Plaintiff’s light duty claim fails because employers are

not required under the ADA to convert a temporary relief

assignment to a permanent position. To the extent Plaintiff seeks

relief for the denial of light duty as a temporary accommodation,

her claim fails because she has not shown that she requested

light duty when temporary light duty could reasonably be expected

to conclude in Plaintiff’s return to regular work, and because

Plaintiff did not respond to MLGW’s argument that medical leave

with short-term disability benefits was a reasonable alternative

accommodation.

10 To the extent Plaintiff conceives “light duty” as a modification of

her water treatment operator position rather than an assignment to

work similar to Carson’s, Plaintiff lost that argument by failing to

brief it. See ECF No. 65; Kleiber, 485 F.3d at 870 (stating that

plaintiff bears initial burden of proposing accommodation).

a. Light Duty as a Permanent Accommodation

“[R]eassignment to a vacant position” is one form of

reasonable accommodation for a disability. 42 U.S.C. § 12111(9).

“An employer has a duty under the ADA to consider transferring

a disabled employee who can no longer perform his old job even

with accommodation to a new position within the [c]ompany for

which that employee is otherwise qualified.” Burns v. Coca-Cola

Enters., 222 F.3d 247, 257 (6th Cir. 2000). As discussed,

however, employers are not required to create new positions; “an

employer need only reassign a disabled employee to a vacant

position.” Id. (emphasis added). Nor are employers required to

convert a temporary position for recuperating employees to a

permanent position. Hoskins, 227 F.3d at 730 (finding that

“turning a rotating or relief position into a permanent position”

was not a reasonable accommodation); Meade v. AT&T, 657 F. App’x

391, 396 (6th Cir. 2016) (“[A]n employer need not create a

permanent light-duty position.”); Thompson v. Henderson, 226 F.

App’x 466, 474 (6th Cir. 2007) (“Defendant is simply not required

to engage [Plaintiff] in temporary light-duty assignment in

perpetuity.”); Brown v. Chase Brass & Copper Co., 14 F. App’x

482, 488 (6th Cir. 2001) (“[A]n employer has no obligation to

create a permanent light duty post when none previously

existed.”) “[I]t would frustrate the ADA for permanently impaired

employees to fill temporary light-duty assignments when those

jobs have been set aside specifically for recuperating

employees.” Hoskins, 227 F.3d at 730 n.4.

Plaintiff’s needs were long-term. In December 2018, when

Plaintiff and MLGW engaged in the interactive ADA process to

determine what accommodations Plaintiff might need, Plaintiff

was under instructions from her doctor to seek sedentary work

and avoid lifting more than twenty pounds. (ECF No. 56-1, Pl.

Dep. 99:7-15, 91:14-93:14.) As of the time of her deposition in

February 2022, Plaintiff remained unable to move some of her

toes and required a medical boot to walk. (Id. at 56:11-17.)

The record demonstrates that light duty is available at

MLGW only as a temporary assignment, not a permanent position.

Under Defendant’s written policies, “[i]f the employee has not

been returned to regular duty at the end of the 90 calendar day

period following an injury, the light duty assignment will cease

and the employee will be placed off work.” (ECF No. 56-7 at 13.)

Plaintiff’s injured coworker, Tiffany Carson, testified in her

deposition that her period of light duty lasted fewer than ninety

days. (ECF No. 56-12, Tiffany Carson Dep. 28:14-16.) Plaintiff

does not point to any employee who received light duty for more

than ninety days or to any other evidence that a permanent light

duty position existed. Plaintiff’s disability has been long-

lasting. Plaintiff was not entitled to have MLGW’s temporary

light duty assignment be made into a permanent position for her

benefit. See Hoskins, 227 F.3d at 730.

b. Light Duty as a Temporary Accommodation

Plaintiff has not shown that she was entitled to light duty

as a temporary measure. First, Plaintiff’s summary judgment brief

does not assert that Plaintiff specifically requested light duty

as an accommodation, let alone that she requested it at a point

before it became obvious that Plaintiff needed a permanent, not

a temporary, accommodation. Plaintiff’s deposition shows that,

at some point in 2019, she requested to be put back to work with

unspecified accommodation. (ECF No. 56-1, Pl. Dep.

101:22-102:5.) That might be interpreted as a request for light

duty. At that point, however, Plaintiff had been unable to

complete her regular work for at least ten months, since February

2018. (ECF No. 56-7, Eric Conway Decl. at 2.)

The Sixth Circuit has held that, “when the requested

accommodation has no reasonable prospect of allowing the

individual to work in the identifiable future, it is objectively

not an accommodation that the employer should be required to

provide.” Walsh v. UPS, 201 F.3d 718, 727 (6th Cir. 2000).

Plaintiff does not give any reason MLGW might have had in 2019

to believe, after ten or more months of little change in

Plaintiff’s condition, that a temporary period of light duty

would permit Plaintiff to be able to resume her normal duties.

(See ECF No. 65.) Plaintiff does not point to any earlier request

for light duty. Assuming that Plaintiff’s comments in 2019 could

be construed as a request for light duty, and even disregarding

the fact that Plaintiff had evidently not recovered in 2022, a

2019 request for light duty in hope that Plaintiff would soon

recover was not a reasonable accommodation because there was no

“reasonable prospect” that Plaintiff would return to her regular

duties. Walsh, 201 F.3d at 727. MLGW was not obliged to provide

a temporary light duty assignment.

Second, MLGW argues that it provided an alternative

accommodation by allowing Plaintiff leave and short-term

disability benefits. (ECF No. 56 at 17.) In some circumstances,

“medical leave can constitute a reasonable accommodation under

the ADA.” Williams, 847 F.3d at 394. Because she has not

responded to MLGW’s argument, Plaintiff cannot show that she was

entitled to light duty instead of leave with short-term

disability benefits.

Plaintiff cannot establish a prima facie case of failure to

accommodate because she was not qualified for the water treatment

operator position, and her proposed accommodation of having

another employee assist her was not reasonable. Plaintiff’s other

proposed accommodation of being assigned to light duty was not

reasonable. It would have required MLGW to convert a temporary,

relief-type role to a permanent position. Plaintiff cannot show

that she was entitled to temporary light duty because she did

not respond to MLGW’s arguments and did not show that she

requested light duty when temporary light duty could reasonably

have been expected to result in her return to her normal duties.

Because Plaintiff cannot establish a prima facie case of failure

to accommodate, MLGW is entitled to summary judgment on that

claim.

V. Conclusion

Plaintiff has abandoned her claims of retaliation. Her

claims of discrimination under Title VII, the ADEA, and the ADA

do not raise a genuine issue of material fact, and MLGW is

entitled to judgment as a matter of law. For the foregoing

reasons, MLGW’s Motion for Summary Judgment, ECF No. 55, is

GRANTED on all of Plaintiff’s claims.

SO ORDERED this 30th day of March, 2023.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE