# Sharif-Mitchell v. Memphis Light Gas & Water

> District Court, W.D. Tennessee · March 30, 2023

URL: https://www.frixlaw.com/law-library/cases/10441314

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** March 30, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10441314

## How later opinions describe it (automated extraction)

- stating that plaintiff bears initial burden of proposing accommodation
- concluding that reasonable jury could not conclude that vacancy existed because plaintiff had provided no evidence of one
- stating that claims had been abandoned by failure to brief in response to summary judgment motion before district court
- finding that “turning a rotating or relief position into a permanent position” was not a reasonable accommodation

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10441314. Public record. Not legal advice.