King v. Lazer Spot Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANTALITA KING

:

Plaintiff,

Case No. 2:22-cv-2924

v. Judge Sarah D. Morrison

Magistrate Judge Chelsey M.

Vascura

LAZER SPOT, INC.

:

Defendant.

OPINION AND ORDER

Antalita King brings this action against Lazer Spot, Inc. based on Lazer

Spot’s alleged refusal to reinstate her employment upon her return from medical

leave. (Compl., ECF No. 1, ¶ 21.) King and Lazer Spot filed cross-motions for

summary judgment (ECF Nos. 19, 20), which are fully briefed and ripe for

consideration.1 For the reasons set forth below, Lazer Spot’s Motion for Summary

Judgment (ECF No. 19) is GRANTED in part and DENIED in part, and King’s

Motion for Partial Summary Judgment (ECF No. 20) is GRANTED in part and

DENIED in part.

I. STATEMENT OF FACTS

Lazer Spot hired King as a truck driver in January 2019. (ECF No. 8, ¶ 9.)

She suffers from hypothyroidism, a condition that impairs her endocrine system.

1 King requests oral argument on the motions. (ECF No. 22, PAGEID # 924;

ECF No. 24, PAGEID # 954.) Pursuant to S.D. Ohio Civ. R. 7.1(b)(2), the Court

finds oral argument to be unnecessary and not “essential to the fair resolution” of

this case. King’s request is DENIED.

(ECF No. 18-1, PAGEID # 56, 63.) In January 2021, King began experiencing

adverse symptoms related to her thyroid disorder—including fatigue, dizziness,

nausea, and headaches—that affected her vision and threatened her ability to

safely operate a truck. (ECF No. 19-5 (“King Dep.”), 117:16–118:6; ECF No. 18-1,

PAGEID # 49–63.)

On January 15, King’s supervisor (Area Manager Holly Smedley) permitted

her to leave work to seek treatment for her symptoms. (ECF No. 18-6, PAGEID

# 526, 547.) Later that day, King texted Smedley a picture of a note from her doctor

stating that she was to be “[e]xcused from duty” until January 22. (ECF No. 19-1,

PAGEID # 641.) Smedley forwarded the note to Terleder Dillon, Lazer Spot’s

workers’ compensation manager responsible for administering leave under the

Family and Medical Leave Act (“FMLA”). (ECF No. 18-6, PAGEID # 530.)

Consistent with Lazer Spot policy, Dillon advised Smedley that King would need to

“provide medical [documentation] showing her diagnosis and treatment” before she

could return to work because “an updated DOT may be required.”2 (Id., PAGEID

2 Before reinstating an employee from any type of medical leave, Lazer Spot

required documentation from the employee showing: (1) the medication the

employee was taking; (2) her prognosis; and (3) her treatment plan going forward.

(ECF No. 18-4 (“Dillon Dep.”), 30:24–31:8, 37:1-23.) Lazer Spot would then review

these materials to determine whether the employee was fit to safely resume her

duties and, if the employee was a driver, whether she needed to undergo a medical

examination to satisfy the certification requirements mandated by the Department

of Transportation (“DOT”). (Id., 14:10-22, 22:17–26:3; ECF No. 18-5 (“Mirasol

Dep.”), 15:6–17:10; ECF No. 18-6, PAGEID # 612 (noting 49 C.F.R. § 391.45).)

Additionally, Lazer Spot’s Employee Handbook included an FMLA policy, which

provided in relevant part that “[w]hen seeking FMLA leave, employees may be

required to provide … [m]edical documentation of fitness for duty before returning

to work, if the leave was due to the employee’s serious health condition.” (ECF No.

# 528–29; Dillon Dep., 22:3-9.) Smedley texted King and confirmed approval of her

FMLA leave but did not relay Dillon’s instruction regarding the need for medical

documentation. (Id.)

King subsequently texted Smedley two additional notes from her doctor,

causing Lazer Spot to extend her leave until February 17. (ECF No. 19-1, PAGEID

# 643, 645; ECF No. 18-6, PAGEID # 549.) During that time, Smedley asked how

she was feeling, and King responded: “[M]y thyroid levels are waaaay outta control

… I’m seeing a specialist now and my levels are dangerously high there [sic] afraid I

may have a Thyroid storm because some of my organs (liver and kidneys) aren’t

functioning properly[.]” (ECF No. 19-1, PAGEID # 644.) Smedley replied with well

wishes and verified that King’s “spot” with Lazer Spot was “secure.” (Id.)

When King notified Smedley that she had been cleared to return from

medical leave on February 22, Smedley responded that Lazer Spot needed

“paperwork” from King’s doctor “saying what was wrong and that [she was] able to

return [to] full duty.” (ECF No. 19-1, PAGEID # 646–47.) By “paperwork,” Smedley

testified that she was referring to King’s “medical records” surrounding her thyroid

issue. (ECF No. 18-3 (“Smedley Dep.”), 41:21–42:7.) However, King only texted

Smedley a picture of a release form signed by her doctor that stated: “Patient had

presented with signs of hypothyroidism. Evaluated today. Released to work without

restrictions.” (ECF No. 19-1, PAGEID # 648.)

On the morning of February 22, Smedley told King that she should not come

19-9, PAGEID # 869–70.)

into work that day because Lazer Spot had yet to approve her return. (ECF No. 19-

1, PAGEID # 649.) Smedley also cautioned that King “might” need to undergo a

DOT examination “thr[ough] [Lazer Spot],” to which King responded: “It’s fine just

let me know when.” (Id.) Smedley did not send King’s return-to-work form to Dillon

until later in the day on February 22, despite having received it from King five days

earlier. (ECF No. 18-6, PAGEID # 535.) Dillon reviewed the form and told Smedley

that Lazer Spot needed “something that is more detailed,” like “medical

documentation from her doctor” in the form of “treatment notes.” (Id.; Dillon Dep.,

38:1-12.)

The next day, Smedley called King and told her that she would need to

submit medical “discharge” paperwork before being reinstated. (ECF No. 19-1,

PAGEID # 650; Smedley Dep., 48:7-14.) King later responded to Smedley with a

text message that her doctor’s office did not “give discharge papers” because

“everything is done online.” (ECF No. 19-1, PAGEID # 650.) King then sent a

picture of another doctor’s release form stating: “Patient Released. She had issue

with hypothyroidism, chronic. Meds adjusted. Safe to resume work at this time

without restriction.” (ECF No. 18-6, PAGEID # 488.) Smedley forwarded King’s

second form to Dillon, who said that it was “not sufficient.” (Id., PAGEID # 533.)

Smedley followed up with King about obtaining further documentation, but

King explained that her medical records concerning her hypothyroidism could not

be separated from her entire medical file, which she did not wish to disclose. (ECF

No. 19-1, PAGEID # 652; King Dep., 123:15–124:13.) Smedley promised King that

she would communicate the problem to Lazer Spot, and she called Dillon shortly

thereafter. (ECF No. 19-1, PAGEID # 653.) Dillon memorialized the call in an email,

writing: “Per our conversation if [King] is unwilling to provide the requested

medical information she will remain on leave until we proceed with admin term.”3

(ECF No. 18-6, PAGEID # 532.)

On March 5, King resigned from Lazer Spot via email:

To whom this may concern, I Antalita King asked the manager Holly

what was needed for me to return to work once I was released by my

physician to return from medical leave, I was told a statement was

needed saying what was wrong and that I was able to return full duty.

I provided that information and then was contacted the next day asking

to provide more information (discharge papers, diagnosis, previous

medications and current medications and why it was safe for me to

return to work) I provided another form from my doctor giving enough

information that my doctor and myself agreed gave enough detail

without violating my HIPPA rights. I was also told that I was going to

have to see one of the companies recommended physicians and take a

new D.O.T physical to return and I was willing to do that but I have

not heard anything from my manager about my return, due to lack of

communication and what I feel is a violation of my HIPPA rights I

have been forced to seek other employment. I was released by my

physician to return to work 2/22/21 the paperwork was sent to my

manager Holly on 2/17/21 today’s date is 3/5/21 and still I have heard

nothing. As many of us as well as my self are suffering from this

pandemic I am financially unable to continue to wait any further to

hear back from Lazer spot on when I’ll be able to return I’m sure you

can understand and if you have any questions or concerns I can be

reached on this email address thank you!

(ECF No. 19-4, PAGEID # 703 (emphasis added).)

The next day, a Lazer Spot manager called King to ask if she wanted to

3 “Admin term” refers to administrative termination, which is the procedure

by which Lazer Spot terminates employees who cannot return to work because of a

medical condition. (Dillon Dep., 44:13-19.)

return to work. (King Dep., 127:6-24.) During that call, the manager directed King

to contact Dillon to provide the requested records so she could come back to work,

justifying the need for additional information by alluding to fraudulent conduct by

other Lazer Spot truck drivers. (Id., 128:1-10.) King responded that this rationale

“didn’t apply to [her],” and she did not contact Dillon. (Id., 128:11-12, 131:23-24;

Dillon Dep., 45:22–46:2.)

Three days after resigning from Lazer Spot, King started a new job CPC

Logistics, Inc. (ECF No. 19-8, PAGEID # 837.)

King later filed a charge of discrimination against Lazer Spot with the Equal

Employment Opportunity Commission (“EEOC”). (ECF No. 18-6, PAGEID # 492,

503.) She then commenced this action against Lazer Spot in July 2022. (Compl.,

generally.) She asserts that Lazer Spot (1) constructively discharged her and failed

to accommodate her in violation of the Americans with Disabilities Act (“ADA”) and

Ohio Rev. Code § 4112.02 (Count I); and (2) interfered with her rights under the

FMLA (Count II). (Id., ¶¶ 22–38.)

II. STANDARD OF REVIEW

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

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

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

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

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

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

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

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

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

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

in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398

U.S. 144, 157 (1970).

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

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

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

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

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

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

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

to find for the nonmoving party).

The standards upon which a court evaluates motions for summary judgment

“do not change simply because the parties present cross-motions.” Taft Broad. Co. v.

United States, 929 F.2d 240, 248 (6th Cir. 1991) (citation omitted).

III. ANALYSIS

A. Disability Discrimination Claims

Employers are prohibited from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). Relevant here, discrimination is defined to encompass an employer’s

failure to “mak[e] reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability,” unless the

employer “can demonstrate that the accommodation would impose an undue

hardship on the operation of the business[.]” Id., § 12112(b)(5)(A).

Disability discrimination claims, whether brought under the ADA or Ohio

law, are analyzed in the same manner. Kleiber v. Honda of America Mfg., Inc., 485

F.3d 862, 872 (6th Cir. 2007); see also Daugherty v. Sajar Plastics, Inc., 544 F.3d

696, 702 (6th Cir. 2008) (“In light of the fact that Ohio’s disability discrimination

law parallels the ADA in all relevant respects, we apply the same analytical

framework[.]”). The contours of an employee’s claim depend on the kind of disability

discrimination to which she was allegedly subjected—she may argue that her

employer took adverse employment actions against her because of her disability (a

“disparate treatment” claim), or that her employer failed to take reasonable steps to

accommodate her disability (a “failure to accommodate” claim), or other theories of

discrimination liability.

In this case, King contends that Lazer Spot “denied her accommodation for

her disability in the form of job-protected leave”; “constructively discharged [her] by

refusing to reinstate her without requiring her to provide medical information that

was not job-related and not consistent with a business necessity”; and “terminated

[her] because of her disability and her refusal to respond to a prohibited medical

inquiry.” (Compl., ¶¶ 26–28.) Based on these allegations, Lazer Spot initially

identified King’s discrimination claim as a disparate treatment claim. (ECF No. 19,

PAGEID # 624.) King subsequently clarified that she brought a failure to

accommodate claim,4 but she argues that she prevails “[e]ven analyzing the claim as

one for disparate treatment.” (ECF No. 20, PAGEID # 900; ECF No. 22, PAGEID

# 935.) Accordingly, the Court will address both theories of liability below.

1. Failure to Accommodate Claim

Courts analyzing disability discrimination claims utilize “two different

rubrics, depending on whether the plaintiff relies on ‘direct’ or ‘indirect’ evidence of

discrimination.” O’Donnell v. Univ. Hosps. Cleveland Med. Ctr., 833 F. App’x 605,

614 (6th Cir. 2020). Because failing to make a reasonable accommodation falls

within the ADA’s definition of “discrimination,” claims premised on an employer’s

failure to offer a reasonable accommodation “necessarily involve direct evidence [of

discrimination] (the failure to accommodate),” such that courts “jettison the familiar

McDonnell Douglas burden-shifting framework applicable in indirect-evidence

4 King argues that summary judgment in Lazer Spot’s favor is “inappropriate”

because Lazer Spot did not address her failure to accommodate theory in its

summary judgment motion. (ECF No. 22, PAGEID # 935.) Looking to her

Complaint, she brings her disability discrimination claim under 42 U.S.C. § 12101

and Ohio Rev. Code § 4112.02. (Compl., PAGEID # 4.) The federal statute is the

ADA’s “Findings and purpose” provision, which does not provide a cause of action.

The state statute concerns “unlawful discriminatory practices” and encompasses

numerous causes of action. Because King alleges facts that could support a

disparate treatment claim (see, e.g., Compl., ¶ 27) and because she had the

opportunity to put forth evidence with respect to her failure to accommodate theory

in her own summary judgment briefing, the Court will not fault Lazer Spot for its

initial analysis.

cases.” Kleiber, 485 F.3d at 868–69 (citation omitted). Instead, to survive summary

judgment on her failure to accommodate claim, King must demonstrate that she

was disabled and that she was otherwise qualified for her position despite her

disability (a) without accommodation from Lazer Spot; (b) with an alleged essential

job requirement eliminated; or (c) with a proposed reasonable accommodation.5

Kleiber, 485 F.3d at 869 (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452

(6th Cir. 2004)). If she meets her burden, Lazer Spot is still entitled to summary

judgment if it can “prov[e] that a challenged job criterion is essential, and therefore

a business necessity, or that a proposed accommodation will impose an undue

hardship.” Id.

Lazer Spot does not dispute that King was disabled (ECF No. 21, PAGEID

# 915), so the Court begins its analysis by looking at whether she was otherwise

qualified for her position before turning to whether Lazer Spot has demonstrated

that its request for further medical information was consistent with business

necessity.

5 In briefing the failure to accommodate claim, both parties apply the

framework outlined in Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th

Cir. 2018), under which a plaintiff must show that (1) she was disabled; (2) she was

otherwise qualified for her position, with or without reasonable accommodation; (3)

her employer knew or had reason to know about her disability; (4) she requested an

accommodation; and (5) her employer failed to provide the necessary

accommodation. (ECF No. 20, PAGEID # 900–01; ECF No. 21, PAGEID # 914–15.)

But, as the Sixth Circuit acknowledged two years after Brumley, this framework

improperly applies the indirect evidence test. See Fisher v. Nissan N. Am., Inc., 951

F.3d 409, 417 (6th Cir. 2020) (“Kleiber, our foundational case establishing that ADA

failure to accommodate claims are analyzed pursuant to the direct test, controls.”).

a) King was arguably qualified for her position.

A “qualified individual” is one who can perform “the essential functions of

their employment position with or without reasonable accommodation.” 42 U.S.C.

§ 12111(8). Essential functions are “fundamental job duties of the employment

position the individual with a disability holds.” 29 C.F.R. § 1630.2(n)(1). In this

case, Lazer Spot employed King as a truck driver, so the ability to safely operate a

commercial truck was undeniably essential to her position. (See also ECF No. 18-6,

PAGEID # 471 (job description providing that “driving” was 85% of King’s

position).) Because King admittedly was at one time unable to perform this function

due to her thyroid disorder, an accommodation was necessary for her to continue to

work for Lazer Spot. Her proposed accommodation was medical leave and

reinstatement. Thus, whether she was a qualified individual depends on whether

she can prove that this proposed accommodation was reasonable and that she would

be “capable of performing the essential functions of the job with the proposed

accommodation.” See Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir.

2010) (citing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183–84 (6th Cir.

1996)); see also 42 U.S.C. § 12112(b)(5)(A) (requiring employers to “mak[e]

reasonable accommodations”).

“[M]edical leave can constitute a reasonable accommodation” under certain

circumstances. Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 394 (6th Cir.

2017). The same is true for reinstatement. See, e.g., Meggert v. Decorative Panels

Int’l, Inc., No. 19-CV-13665, 2020 WL 3846334, at *2 (E.D. Mich. July 8, 2020) (“Job

protection may qualify as a reasonable accommodation [under the ADA] … under

certain circumstances, the ADA requires an employer to allow an employee to

return to their prior position following medical leave.”); Hastings v. Fayette Cnty.

Sch., 320 F. Supp. 3d 966, 984 (W.D. Tenn. 2018) (“Plaintiff was entitled to return

to her job once her accommodation ended.”); see also EEOC Enforcement Guidance,

Reasonable Accommodation and Undue Hardship under the Americans with

Disabilities Act, No. 915.002, 2002 WL 31994335, at *15 (Oct. 17, 2002) (“An

employee with a disability who is granted leave as a reasonable accommodation is

entitled to return to his/her same position unless the employer demonstrates that

holding open the position would impose an undue hardship.”).6

Assuming that medical leave and reinstatement could be considered

reasonable accommodations for King, it is not clear that she could have performed

her job upon return. See Blanchet v. Charter Commc’ns, LLC, 27 F.4th 1221, 1229

(6th Cir. 2022) (“We must therefore determine whether [Plaintiff] would be

‘otherwise qualified’ to perform her essential job functions with her proposed

accommodation, in other words, when she returned to work.”). In support of her

6 Lazer Spot argues that the failure to reinstate an employee after medical

leave does not constitute a failure to accommodate under the ADA, relying on Ellis

v. Tennessee, No. 1:09-cv-131, 2010 WL 3057818 (E.D. Tenn. Aug. 2, 2010), rev’d on

other grounds, 491 F. App’x 659 (6th Cir. 2012). (ECF No. 21, PAGEID # 915.) But,

as the case law and EEOC Guidance indicate, an employer’s act of allowing an

employee to take medical leave necessarily contemplates the employee’s eventual

return—otherwise, the leave would amount to termination. See Lee v. City of

Columbus, 636 F.3d 245, 256 (6th Cir. 2011) (quoting White v. Burlington N. &

Santa Fe Ry. Co., 364 F.3d 789, 812 (6th Cir. 2004)) (“The [EEOC] Enforcement

Guidance, while non-binding, ‘constitute[s] a body of experience and informed

judgment to which courts and litigants may properly resort for guidance.’”).

qualifications for the position, King relies on the two release forms from her doctor

indicating that she could return to work, arguing that no further information was

needed. (ECF No. 19-1, PAGEID # 648; ECF No. 18-6, PAGEID # 488.) However,

the forms do not conclusively support her contention that she was qualified to drive

on February 22. (See ECF No. 18-6, PAGEID # 488 (stating that King’s condition

was “chronic” and necessitated a rebalancing of her medication).) King also asserts

that she was qualified because she possessed a DOT medical certification “valid”

until November 2022 (and she was amenable to obtaining a new one, if necessary)

and because her supervisor had “no issues” with her performance prior to her leave.

(ECF No. 20, PAGEID # 904.) But a lack of prior performance issues is not

dispositive of potential future issues, and the DOT certification King earned before

going on leave does not inherently show she remained qualified upon her return,

particularly considering DOT re-certification requirements. See, e.g., Daily v.

Martin Transp. Sys., Inc., No. 1:12-cv-115, 2013 WL 5442750, at *8 (W.D. Mich.

Sept. 30, 2013).

“Compliance with DOT safety regulations is an essential function of the job

for a commercial driver.” King v. Mrs. Grissom’s Salads, Inc., 187 F.3d 636 (6th Cir.

1999). Although King had a DOT certification that ordinarily would not have

expired until November 2022, DOT regulations require “[a]ny driver whose ability

to perform [her] normal duties has been impaired by a physical or mental injury or

disease” to be medically examined and certified “as physically qualified to operate a

commercial motor vehicle.” (ECF No. 22, PAGEID # 932 (citing 49 C.F.R.

§ 391.45(g)).) The parties agree that King’s thyroid condition had “indisputably

impaired” her ability to drive. (Id.; ECF No. 21, PAGEID # 919.) Therefore, she

likely lacked the necessary examination and re-certification when she attempted to

return to Lazer Spot—meaning she was not then qualified to drive, even with her

accommodation of medical leave and reinstatement. See, e.g., Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555, 570 (1999); Roseman v. Linmore Invs., Inc., No. 1:17-cv-

826, 2021 WL 3634706, at *4 (S.D. Ohio Aug. 17, 2021) (Rosen, J.); Cummings v.

Dean Transp., Inc., 9 F. Supp. 3d 795, 803 (E.D. Mich. 2014); Daily, 2013 WL

5442750, at *7. But because Lazer Spot policy prevents employees from obtaining

DOT re-certification on their own (see Smedley Dep., 17:4-12, 23:1-12; Mirasol Dep.,

31:19–32:9), the impetus was on Lazer Spot to facilitate the re-certification process

for King when she sought to return to work, so the Court will not find her

unqualified on this basis.

Thus, looking at the facts in the light most favorable to King, the Court will

presume that she has shown that she was otherwise qualified and safe to drive

upon reinstatement.

b) Lazer Spot’s request for additional medical

information was a business necessity.

Lazer Spot insists that “providing evidence of the ability to safely resume

driving after extended medical leave is an essential criterion of [King’s] role.” (ECF

No. 21, PAGEID # 918.) Whether this requirement is essential depends on Lazer

Spot’s motivations for implementing it. See Wrenn v. Gould, 808 F.2d 493, 502 (6th

Cir. 1987) (focusing on “the employer’s motivation, not the applicant’s perceptions,

or even an objective assessment of what qualifications are required for a particular

position”). According to Lazer Spot, its request was necessary to “evaluate whether

[King was] qualified to safely drive commercial vehicles” and to decide whether she

needed to undergo a DOT examination for re-certification. (Dillon Dep., 14:10-22,

22:17–26:3; Mirasol Dep., 15:6–17:10.)

The ADA permits an employer to “require a medical examination (and/or

inquiry) of an employee that is job-related and consistent with business necessity”

and to “make inquiries into the ability of an employee to perform job-related

functions.” 29 C.F.R. § 1630.14(c). “Disability-related inquiries and medical

examinations that follow up on a request for reasonable accommodation when the

disability or need for accommodation is not known or obvious [ ] may be job-related

and consistent with business necessity.” EEOC Enforcement Guidance on

Disability-Related Inquiries and Medical Examinations of Employees under the

ADA, No. 915.002 (July 27, 2000) (“EEOC Inquiries Guidance”).7 Accordingly,

“[e]mployers may require documentation supporting an employee’s requested

accommodation.” Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812 (6th Cir.

2020) (citing Kennedy v. Superior Printing Co., 215 F.3d 650, 656 (6th Cir. 2000));

see also Harvey v. Am.’s Collectibles Network, Inc., No. 3:09-CV-523, 2011 WL

182864, at *7 (E.D. Tenn. Jan. 20, 2011) (citation omitted) (“[T]he ADA ... allow[s]

employers to make inquiries into an employee’s medical conditions … in order to

7 Available at https://www.eeoc.gov/laws/guidance/enforcement-guidance-

disability-related-inquiries-and-medical-examinations-employees#N_40_.

reasonably accommodate that employee.”). A disability-related inquiry or medical

examination may also be “job-related and consistent with business necessity” when

an employer “has a reasonable belief that an employee’s present ability to perform

essential job functions will be impaired by a medical condition or that s/he will pose

a direct threat due to a medical condition.” Id. Regardless of the basis, “[a]ny

inquiries … must be limited in scope to what is needed to make an assessment of

the employee’s ability to work.” Id.

Here, consistent with the ADA, Lazer Spot could request additional medical

documentation from King before reinstating her. Lazer Spot sought materials from

King identifying her prognosis, treatment plan, and current medications solely

related to her thyroid condition. (Dillon Dep., 30:24–31:8, 37:1-23.) This request was

a disability-related inquiry properly limited in scope.

Further, a reasonable jury could only conclude that Lazer Spot’s request for

further medical documentation was job-related and consistent with business

necessity. When King sought to return to work, Lazer Spot asked for further

information to support her request for reinstatement as an accommodation. See,

e.g., Harvey, 2011 WL 182864, at *7–8; Tchankpa, 951 F.3d at 812. The evidence

supports the reasonableness of Lazer Spot’s belief that it needed the materials to

evaluate whether King’s disorder continued to impair her ability to drive. King

admits that she had been “incapacitated by her serious medical condition” and

“suffering from debilitating effects of hypothyroidism.” (ECF No. 20, PAGEID # 898,

903.) She had experienced “a crescendo of worsening symptoms,” including fatigue,

dizziness, “bad” headaches, and nausea—which she acknowledged affected her

vision and made her “not able to operate a vehicle”—to such an extent that she

needed to leave work. (Id., PAGEID # 897, 902; King Dep., 117:9–118:6.) While on

leave, she had told Smedley that her “thyroid levels [were] waaaay outta control”

and “dangerously high,” that she was seeing a specialist, and that “some of [her]

organs (liver and kidneys) [were not] functioning properly”—yet, less than a month

later, she asked to come back to work. (ECF No. 19-1, PAGEID # 644.) And perhaps

most importantly, in saying she could return to work, her physician noted the

“chronic” nature of her hypothyroidism. (ECF No. 18-6, PAGEID # 488.)

King argues that Lazer Spot did not have a business need for any additional

information and that its request for such information was not job-related or

essential because it had already determined, based on the materials she did

provide, that she needed to undergo a DOT examination. (ECF No. 24, PAGEID

# 963–64.) But regardless of whether she needed the DOT examination, Lazer Spot

had the right to evaluate whether she could safely drive in the first instance.

“Workplace safety is a well-recognized business necessity.” Miller v. Whirlpool

Corp., 807 F. Supp. 2d 684, 687 (N.D. Ohio 2011); see also Conroy v. New York State

Dep’t of Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003) (“[B]usiness necessities may

include ensuring that the workplace is safe and secure.”). And Lazer Spot has

shown that its request contributed to the achievement of that business necessity—

based on its knowledge of the severity of King’s condition and the length of her

absence, its medical documentation requirement provided an effective way to

combat the possibility of employing a truck driver who posed a safety risk. (ECF No.

21, PAGEID # 918.)

Because Lazer Spot’s request for medical documentation was “essential, and

therefore a business necessity,” Lazer Spot is entitled to summary judgment on

King’s failure to accommodate claim.

2. Disparate Treatment Claim

King’s ADA claim also fails as a disparate treatment claim. To establish a

prima facie case of disparate treatment, King must show that (1) she is disabled; (2)

she is otherwise qualified for the position, with or without reasonable

accommodation; (3) she suffered an adverse employment action; (4) Lazer Spot

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

she was replaced. Conners v. SpectraSite Commc’ns, Inc., 465 F. Supp. 2d 834, 854

(S.D. Ohio 2006) (Graham J.) (citing Monette, 90 F.3d at 1185). Here, King is unable

to establish her prima facie case because she did not suffer an adverse employment

action.

An adverse employment action is a “materially adverse change in the terms

or conditions of ... employment because of [the] employer’s conduct.” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (citation omitted). If an

employee voluntarily resigns, “[s]he cannot claim that [s]he suffered an adverse

employment decision under the ADA[.]” Hammon v. DHL Airways, Inc., 165 F.3d

441, 447 (6th Cir. 1999). King disputes the voluntariness of her resignation and

argues that she suffered an adverse employment action when she was

“constructive[ly] discharge[d] in the form of not being reinstated.” (ECF No. 22,

PAGEID # 938.) She asserts that Lazer Spot presented her with an ultimatum such

that she had “no prospect of returning, short of acquiescing to” Lazer Spot’s request.

(Id., PAGEID # 940.)

To demonstrate a constructive discharge, King must adduce evidence to show

that Lazer Spot (1) deliberately created intolerable working conditions, as perceived

by a reasonable person; and (2) did so with the intention of forcing her to quit.

Logan v. Denny’s, Inc., 259 F.3d 558, 568–69 (6th Cir. 2001) (citation omitted). A

constructive discharge claim “depends upon the facts of each case and requires an

inquiry into the intent of the employer and the reasonably foreseeable impact of the

employer’s conduct upon the employee.” Smith v. Henderson, 376 F.3d 529, 533 (6th

Cir. 2004). Such a claim requires a finding that “working conditions would have

been so difficult or unpleasant that a reasonable person in the employee’s shoes

would have felt compelled to resign.” Talley v. Fam. Dollar Stores of Ohio, Inc., 542

F.3d 1099, 1107 (6th Cir. 2008) (citations omitted).

King has not shown that Lazer Spot’s request for medical documentation

caused her working conditions to become objectively intolerable or was a deliberate

attempt to force her to quit. See Groening v. Glen Lake Cmty. Sch., 884 F.3d 626,

630 (6th Cir. 2018); Tchankpa, 951 F.3d at 814 (“[I]ntolerability is a demanding

standard.”). She did not suffer any demotion, reassignment to menial or degrading

work, or harassment or humiliation. Logan, 259 F.3d at 569 (outlining factors

courts consider for purposes of satisfying constructive discharge inquiry). Had Lazer

Spot required King to submit her entire medical file, the tolerability of the

conditions and the foreseeability of King’s resignation might be closer calls—but

Lazer Spot only requested certain tailored information about her thyroid condition.

At most, Lazer Spot inconvenienced King, which is insufficient. See, e.g., Mills v.

Mason Consol. Sch. Dist., No. 07-CV-14648, 2008 WL 4457808, at *11 (E.D. Mich.

Sept. 30, 2008).

Further, no reasonable person would find that King was constructively

discharged when only two weeks passed between her intended return date and her

resignation, and when Lazer Spot called her after she resigned to convince her to

come back to work. (King Dep., 127:6-24); cf. O’Donnell, 833 F. App’x at 618

(plaintiff placed on leave for six months with no contact with employer); Kulick v.

Ethicon Endo-Surgery, Inc., 803 F. Supp. 2d 781, 783 (S.D. Ohio 2011) (Spiegel, J.)

(plaintiff on leave for one month and did not resign but was terminated). That her

resignation was involuntary is also discredited by her refusal to participate in a

cooperative process with respect to her accommodation, including her failure to

notify Lazer Spot that she could not afford to stay out any longer. (King Dep. 126:4-

8); see Tchankpa, 951 F.3d at 812–13 (employer not liable for discrimination where

employee resigned “before completing negotiations over their accommodation”).

Finally, Lazer Spot’s internal determination that King would be placed on

“admin term” if she failed to provide the medical documentation does not make her

resignation involuntary—she was unaware of that determination when she decided

to resign. See Laster v. City of Kalamazoo, 746 F.3d 714, 728–29 (6th Cir. 2014)

(plaintiff could not rely on information not “actually communicated” to him to show

constructive discharge).

King cannot prove her prima facie case, and summary judgment in favor of

Lazer Spot is therefore granted on her ADA disparate treatment claim.

B. FMLA Interference Claim

The FMLA affords up to twelve weeks of leave in one year to eligible

employees who cannot work because of a “serious health condition.” 29 U.S.C.

§ 2612(a)(1)(D). “[T]he leave provisions of the [FMLA] are wholly distinct from the

reasonable accommodation obligations of employers covered under the [ADA].”

Comments to the Family and Medical Leave Act of 1993, 73 FR 67934-01, 2008 WL

4898395, at *68040 (Nov. 17, 2008) (“FMLA Comments”) (quoting S. Rep. No. 103-3,

at 38 (1993)). Thus, “where both laws may apply, the applicability of each statute

needs to be evaluated independently.” Id.; see also Albert v. Runyon, 6 F. Supp. 2d

57, 67 (D. Mass. 1998) (“[T]hat the ADA does not preclude employers from requiring

employees who suffer performance problems that may be health related to undergo

medical examinations [or inquiries] does not mean that the FMLA permits all such

examinations [or inquiries].”).

An employer may not “interfere with, restrain, or deny the exercise of or the

attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1).

To prevail on an interference claim, a plaintiff must prove that (1) she was an

FLMA-eligible employee; (2) the defendant was an “employer” as defined under the

FMLA; (3) she was entitled to FMLA leave; (4) she gave the employer notice of her

intention to take leave; and (5) the employer denied or interfered with the FMLA

benefits to which she was entitled. Nuttall v. Progressive Parma Care Ctr., LLC, No.

21-4199, 2022 WL 2952586, at *2 (6th Cir. July 26, 2022) (citing Edgar v. JAC

Prod., Inc., 443 F.3d 501, 507 (6th Cir. 2006)). A plaintiff seeking relief under the

FMLA-interference theory must also establish that “the employer’s violation caused

[her] harm.” Wallace v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014) (citation

omitted). If a plaintiff demonstrates each of these elements, the employer must

show that it had a “legitimate reason unrelated to the exercise of FMLA rights for

engaging in the challenged conduct.” Id.; see also Donald v. Sybra, Inc., 667 F.3d

757, 762 (6th Cir. 2012) (recognizing that McDonnell Douglas burden-shifting

analysis applies to FMLA interference claims absent direct evidence). If the

employer successfully carries its burden, the plaintiff can rebut the employer’s

reason by showing that the proffered reason had no basis in fact, did not actively

motivate the adverse action, or was insufficient to warrant the action. Donald, 667

F.3d at 762 (citing Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)).

Here, King is entitled to summary judgment because although Lazer Spot

was permitted to seek additional information regarding her ability drive, it could

not refuse to return her to work while doing so.

1. King has established a prima facie case of interference.

Lazer Spot admits that it is an employer under the FMLA and that King was

an eligible employee who provided adequate notice of her need for medical leave.

(ECF No. 8, ¶¶ 32–34.) It also does not dispute that King was entitled to FMLA

leave. (Mirasol Dep., 13:9-12.) Instead, Lazer Spot contends that it did not deny or

interfere with King’s FMLA benefits when it requested that she provide additional

medical documentation and that, even if the Court finds otherwise, King cannot

show that she suffered harm as a result. (ECF No. 19, PAGEID # 635.)

a) Lazer Spot interfered with King’s FMLA benefits.

The FMLA requires employers to restore employees returning from leave to

their former positions or equivalent positions unless they are unable to perform the

position’s essential functions. 29 U.S.C. § 2614(a)(1); 29 C.F.R. § 825.216(c); Hoge v.

Honda of Am. Mfg., Inc., 384 F.3d 238, 244 (6th Cir. 2004) (observing that FMLA

“creates the concomitant right” of restoration unless limitations apply). An

employer violates the FMLA if the employer “interferes with the FMLA-created

right to medical leave or to reinstatement after qualified leave.” Ritenour v.

Tennessee Dept. of Human Servs., 497 Fed. App’x. 521, 530 (6th Cir. 2012) (citing

Arban v. West Publ’g Corp., 345 F.3d 390, 401 (6th Cir. 2003)). The right to

reinstatement is “the linchpin” of the interference theory because “the FMLA does

not provide leave for leave’s sake, but instead provides leave with an expectation

[that] an employee will return to work after the leave ends.” Edgar, 443 F.3d at 507

(citations omitted); see also Marshall v. The Rawlings Co., LLC, 854 F.3d 368, 384–

85 (6th Cir. 2017) (“Interference occurs when an employer shortchanges an

employee’s leave time, denies reinstatement, or otherwise interferes with an

employee’s substantive FMLA rights.”).

As a condition of restoration, the FMLA permits employers to enforce “a

uniformly applied practice or policy that requires each such employee to receive

certification from the health care provider of the employee that the employee is able

to resume work,” known as a “fitness-for-duty certification.” 29 U.S.C. § 2614(a)(4);

29 C.F.R. § 825.312(a). “An employer may seek a fitness-for-duty certification only

with regard to the particular health condition that caused the employee’s need for

FMLA leave.” 29 C.F.R. § 825.312(b). However, “[a]n employer may require that the

certification specifically address the employee’s ability to perform the essential

functions of the employee’s job” only if the employer provides the employee with “a

list of the essential functions of the employee’s job” and indicates that “the

certification must address the employee’s ability to perform those essential

functions.” Id. § 825.312(b).

If a fitness-for-duty certification is necessary for restoration, an employer

must provide notice of this requirement to its employees; if such notice is given, the

employer may delay an employee’s restoration to employment until it receives the

employee’s certification. 29 C.F.R. § 825.300(d)(3); id. § 825.312(d)–(e). Upon

receiving a fitness-for-duty certification, the employer may contact the employee’s

health care provider to clarify and authenticate the certification, but clarification

may be requested only for the serious health condition for which FMLA leave was

taken, and “[t]he employer may not delay the employee’s return to work while

contact with the health care provider is being made.” Id. § 825.312(b).

The parties dispute whether Lazer Spot sent the FMLA-mandated notices to

King, including (as relevant here) notice of the fitness-for-duty certification

requirement. (Compare Dillon Dep., 11:2–12:6, 15:1–17:21, 20:18-22, with ECF No.

20, PAGEID # 890.) The Court need not resolve this dispute because even assuming

Lazer Spot did provide King with advanced notice of the need for a fitness-for-duty

certification, she was not required to submit the medical records Lazer Spot

requested.8 There is no evidence indicating, nor do the parties argue, that Lazer

Spot provided King with a list of essential functions or otherwise followed FMLA

procedure such that her fitness-for-duty certification had to specifically address her

ability to perform the essential functions of her position. 29 C.F.R. § 825.312(b).

Thus, her fitness-for-duty certification needed only to “certify that [she was] able to

resume work.” Id. § 313(d) (citing id. § 825.312(a)). No further information was

necessary for compliance purposes. See, e.g., Brumbalough v. Camelot Care Centers,

Inc., 427 F.3d 996, 1003 (6th Cir. 2005) (interpreting earlier but substantially

similar version of regulation to require only statement that employee can return to

work and nothing more); Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 252–

53 (3d Cir. 2014) (citing current version of 29 C.F.R. § 825.312(b) and observing that

“an employee’s healthcare provider must merely certify that the employee is able to

resume work”).

8 For the same reason, the Court need not evaluate the sufficiency of the

notice provided in Lazer Spot’s Employee Handbook (ECF No. 19-9, PAGEID # 869–

70). See 29 C.F.R. § 825.300(d)(3) (“If the employer handbook or other written

documents (if any) describing the employer’s leave policies clearly provide that a

fitness-for-duty certification will be required in specific circumstances (e.g., by

stating that fitness-for-duty certification will be required in all cases of back

injuries for employees in a certain occupation), the employer is not required to

provide written notice of the requirement with the designation notice, but must

provide oral notice no later than with the designation notice.”).

In this case, King provided two release forms from her physician that said

she was able to resume work without restriction. (ECF No. 19-1, PAGEID # 648;

ECF No. 18-6, PAGEID # 488.) At that point, Lazer Spot’s duty to reinstate King

was “triggered” under the FMLA. Brumbalough, 427 F.3d at 1004. When King

attempted to return to work, Lazer Spot improperly interfered with that right when

it told her that she could not. See, e.g., Clark v. Gospel Light Publications, No. 106-

CV-327, 2007 WL 2462654, at *7 (S.D. Ohio Aug. 27, 2007) (Dlott, J.); Budhun, 765

F.3d at 253; Rutherford v. Peoria Pub. Sch. Dist. 150, 228 F. Supp. 3d 843, 850 (C.D.

Ill. 2017) (“Rutherford testified that he advised the District of his ability to return to

work when he delivered the note … It was then Rutherford’s right to be returned to

work without delay.”).

b) Lazer Spot’s interference with King’s FMLA rights

caused her harm.

“[T]he mere occurrence of interference with an employee’s FMLA rights is not

a per se FMLA violation.” Allen v. Butler Cnty. Comm’rs, 331 F. App’x 389, 394 (6th

Cir. 2009). Rather, the statute “provides no relief unless the employee has been

prejudiced by the violation[.]” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,

89 (2002) (citing 29 U.S.C. § 2617(a)(1)); see also id. (citations omitted) (“The

employer is liable only for compensation and benefits lost ‘by reason of the

violation,’ for other monetary losses sustained ‘as a direct result of the violation,’

and for ‘appropriate’ equitable relief, including employment, reinstatement, and

promotion.”).

Here, King alleges that she suffered “cognizable injury” beginning on

February 22 (when Smedley told her to go home because Lazer Spot had not

approved her return) through March 5 (when she resigned). (ECF No. 24, PAGEID

# 958.) She points to economic harm in the form of (1) lost wages during this two-

week period; and (2) underemployment with inconsistent work at the new position

she started following her resignation from Lazer Spot. (ECF No. 22, PAGEID # 934;

King Dep., 73:15-24; ECF No. 22-1, PAGEID # 942.)

King suffered “actual monetary losses” when Lazer Spot interfered with her

right to reinstatement. See Brumbalough, 427 F.3d at 1007 (observing that FMLA

provides for damages “only insofar as they are the actual monetary losses of the

employee[,] such as salary and benefits and certain liquidated damages”). Although

King received her requested leave, her harm arose when Lazer Spot refused to

reinstate her, causing her to remain on unpaid leave for two weeks. (ECF No. 22-1,

PAGEID # 942.) However, to the extent King suffered underemployment after

leaving Lazer Spot, courts in similar contexts have found that “the period of liability

will end if [a] plaintiff voluntarily quits [her] employment with the defendant

absent a constructive discharge.” Booker v. Syngenta Crop Prot., LLC, No. 2:14-CV-

02604-JPM, 2015 WL 5883512, at *10 (W.D. Tenn. Oct. 8, 2015) (citation omitted)

(Title VII); see also id. (“[T]he law precludes an award of back pay or front pay after

the date of [ ] resignation” if no constructive discharge found). King voluntarily

resigned and did not suffer a constructive discharge, meaning Lazer Spot’s liability

ended upon her departure.

Thus, King has established her prima facie case.

2. Lazer Spot has articulated a legitimate reason for its

actions.

An employer may lawfully take an action that prevents an employee from

exercising her statutory right to FMLA reinstatement, but only if the action would

have occurred regardless of the employee’s request for or taking of FMLA leave.

Arban, 345 F.3d at 401; Albert, 6 F. Supp. 2d at 69 (observing that employer “needs

some reason beyond an employee’s having taken FMLA leave to justify ordering a

fitness-for-duty examination”). The burden now shifts to Lazer Spot to articulate a

legitimate, non-FMLA-related reason for its actions. Wallace, 764 F.3d at 585.

According to Lazer Spot, it asked for the documentation to ensure King was

fit to safely resume her job duties pursuant to its internal policy, which applies to

all employees who return from any type of medical leave.9 (Dillon Dep., 14:10-22,

9 Lazer Spot employees testified that the medical documentation would be

used to determine whether King needed a new DOT recertification. (Dillon Dep.,

14:10-22, 22:17–26:3; Mirasol Dep., 15:6–17:10.) But Lazer Spot does not offer this

as a legitimate reason for its request, instead focusing solely on its own internal

policy. (ECF No. 23, PAGEID # 944 (“[W]hether or not her condition warranted an

updated DOT certification is irrelevant to the issue at the heart of her FMLA

claim—whether Lazer Spot was entitled to request medical documentation

pursuant to its own policy.”).) Had Lazer Spot pointed to the DOT regulations

surrounding recertification, the Court is not convinced that they provide a reason

unrelated to King’s taking of FMLA leave. Even if so, Lazer Spot’s VP of Human

Resources testified that that the materials King did provide were “enough for Lazer

Spot to determine [whether King] needs a new DOT recertification.” (Mirasol Dep.,

29:5-20.) A review of the DOT regulations also indicates that recertification was

likely necessary for King regardless of her provision of medical records because the

parties agree that she was impaired by her thyroid condition, which caused fatigue,

dizziness, nausea, and headaches that affected her vision, such that she would be

medically disqualified. (ECF No. 22, PAGEID # 932; ECF No. 21, PAGEID # 919; 49

C.F.R. § 391.45(g); 49 C.F.R. § 391.41(b).)

22:17–26:3; Mirasol Dep., 15:6–17:10; ECF No. 19, PAGEID # 634.) This reason is

sufficient at this stage of the analysis. Garavaglia v. George P. Johnson Project:

Worldwide, Inc., No. 20-CV-12714, 2023 WL 3826456, at *10 (E.D. Mich. June 5,

2023), appeal dismissed sub nom. Garavaglia v. Project: Worldwide, Inc., No. 23-

1612, 2023 WL 9060870 (6th Cir. Nov. 8, 2023) (articulating that defendants’

burden is one of production).

3. King has sufficiently rebutted Lazer Spot’s reason.

The burden lastly shifts to King to produce evidence that casts doubt on

Lazer Spot’s explanation. Donald, 667 F.3d at 762. King argues that Lazer Spot’s

internal policy was insufficient to warrant Lazer Spot’s actions because Lazer Spot

was not permitted to apply a more stringent return-to-work requirement than the

FMLA. (ECF No. 22, PAGEID # 929.)

Employers may not justify further fitness-for-duty inquiries beyond the

initial FMLA certification for return to duty by claiming that the certification, if

adequate under the FMLA, was nonetheless insufficient for its business needs.

Albert, 6 F. Supp. 2d at 68. If such were the case, “the FMLA’s prohibition on

requiring any ‘additional information’ beyond ‘a simple statement of an employee’s

ability to return to work’ would be nullified.” Id. Put differently, an employee’s

FMLA leave cannot itself provide a job-related need for further inquiries where the

employer has no present reason to doubt the employee’s ability to work. Id. (“The

ADA and the FMLA do not conflict if the ADA’s business necessity requirement

requires more than an employee’s having taken FMLA leave.”). Instead, an

employer may make medical inquiries of an employee who provided a sufficient

fitness-for-duty certification only “where the employee’s ongoing limitations may

interfere with her ability to work.” Id. at 69; see also 29 C.F.R. § 825.212(h).

Here, Lazer Spot had a sufficient business justification to make further

medical inquiries of King—among other reasons, King’s physician certified her as fit

to return, but he also deemed her condition to be “chronic” and necessitating a

rebalancing of medication. (ECF No. 19-1, PAGEID # 644; ECF No. 18-6, PAGEID

# 488.) Under the circumstances, Lazer Spot reasonably believed that King suffered

from a continuing disorder at the time she sought reinstatement that could affect

her job performance.

Nevertheless, to the extent Lazer Spot conditioned King’s reinstatement on

her provision of additional medical records beyond her sufficient fitness-for-duty

certification, its conduct was improper. Although the FMLA does not grant a right

to reinstatement to employees who are unable to perform the essential functions of

their positions, 29 C.F.R. § 825.216(c), Lazer Spot could have addressed its concern

by reaching out to King’s medical provider, or sending her for an examination, or

making further appropriate medical inquiries of her, but, in each instance, only

after reinstating her. The FMLA prohibits Lazer Spot from delaying King’s return

simply because it was “second-guessing” her fitness-for-duty certification. Id.

§ 825.312(b) (“[T]he employer may contact the employee’s health care provider for

purposes of clarifying and authenticating the fitness-for-duty certification … The

employer may not delay the employee’s return to work while contact with the health

care provider is being made.”); id. § 825.312(h) (emphasis added) (“After an

employee returns from FMLA leave, the ADA requires any medical examination at

an employer’s expense by the employer’s health care provider be job-related and

consistent with business necessity.”); Albert, 6 F. Supp. 2d at 69 (“Once [Plaintiff]

returns to work, [Defendant] may order her to undergo a fitness-for-duty

examination if it has sufficient reason under the ADA/Rehabilitation Act and its

own agency regulations.”); Brumbalough, 427 F.3d at 1004; see also FMLA

Comments, 2008 WL 4898395, at *68036 (clarifying that before employee’s return to

work, employer must accept employee’s certification and return employee to

employment; after return to employment, FMLA protections no longer apply, and

employer may require medical examination or inquiries consistent with ADA).

That Lazer Spot’s concurrent internal policy required particular medical

documentation does not justify its failure to reinstate King. (ECF No. 19, PAGEID

# 634.) “[A]n employer may not apply a more restrictive leave policy than provided

under the FMLA[.]” Killian v. Yorozu Auto. Tennessee, Inc., No. 4:02-CV-39, 2004

WL 4737654, at *6 (E.D. Tenn. Aug. 16, 2004), aff’d but criticized on other grounds,

454 F.3d 549 (6th Cir. 2006). Employers may enforce internal policies that are

equally or less stringent than the FMLA’s requirements, but they may not rely on

inconsistent or conflicting policies. See Cavin v. Honda of Am. Mfg., Inc., 346 F.3d

713, 720 (6th Cir. 2003) (“[T]he FMLA does not permit an employer to limit his

employee’s FMLA rights by denying them whenever an employee fails to comply

with internal procedural requirements that are more strict than those contemplated

by the FMLA.”); Clayton v. Shelby Cnty. Gov’t, No. 08-2612-TMP, 2013 WL

12340144, at *9 (W.D. Tenn. Aug. 22, 2013). For instance, courts have upheld

employer policies that create separate employee obligations unrelated to the

FMLA’s substantive rights, such as policies requiring employees to call in when on

leave or provide doctor’s notes supporting absences. See Clayton, 2013 WL

12340144, at *9 (discussing cases). On the other hand, courts strike down policies

that conflict with the FMLA’s provisions, such as policies requiring employees to

notify a specific department of an absence or submit certification materials sooner

than the statutory deadline. See, e.g., Calvin, 346 F.3d at 722–23; Harrigan v. Dana

Corp., 612 F. Supp. 2d 929, 942 (N.D. Ohio 2009).

In this case, by requiring additional medical information beyond certification

that Ms. King was “able to resume work,” Lazer Spot’s more stringent internal

policy conflicted with the FMLA.10 Thus, King was obligated only to follow the

10 The cases Lazer Spot cites to the contrary are not on point. (ECF No. 19,

PAGEID # 634 (citing Verkade v. U.S. Postal Serv., 378 F. App’x 567 (6th Cir. 2010),

Allen, 331 F. App’x at 389, and Harrell v. United States Postal Serv., 445 F.3d 913

(7th Cir. 2006)).) In Harrell, a postal service employee provided return-to-work

certifications to USPS pursuant to USPS’s policy as permitted by the FMLA, but his

collective bargaining agreement required further medical documentation, and he

was fired when he refused to provide the additional materials. Harrell, 445 F.3d at

916–17. The court ruled against the employee, citing the FMLA’s provision stating

that its certification requirements may not “supersede a … collective bargaining

agreement[.]” Id. at 923–927. Here, King’s relationship with Lazer Spot is not

governed by a collective bargaining agreement. Additionally, the issue in Harrell

was whether an employer’s internal policy, which was informed by a collective

bargaining agreement, can impose more stringent return-to-work requirements

than the “simple certification by the employee’s own physician” permitted by the

FMLA, not whether an employer’s internal policy standing alone that requires more

than a “simple certification” is lawful. Id. at 925. Because Allen and Verkade are

both part of Harrell’s progeny, they are unhelpful for the same reasons.

FMLA requirements in this regard. See Cavin, 346 F.3d at 723 (“[W]here an

employer’s internal policies conflict with the provisions of the FMLA, the FMLA

controls and an employee need only comply with the requirements of the Act to

invoke its protections.”).

By not reinstating King upon her provision of fitness-for-duty certifications,

Lazer Spot interfered with her FMLA rights.

4. King’s Entitlement to Liquidated Damages

King also moved for summary judgment on whether she should be awarded

liquidated damages. (ECF No. 20, PAGEID # 906.) The FMLA provides that, in

addition to compensatory damages specified in § 2617(a)(1)(A)(i)–(ii), Lazer Spot

“shall be liable for an amount of liquidated damages equal to the amount of wages,

salary, employment benefits, or other compensation denied or lost to an employee,

plus interest, by reason of the employer’s violation.” Chandler v. Specialty Tires of

Am. (Tennessee), Inc., 283 F.3d 818, 827 (6th Cir. 2002) (citing 29 U.S.C.

§ 617(a)(1)(A)(iii)). The Court may reduce that award to only compensatory damages

if Lazer Spot “proves to the satisfaction of the court that the act or omission which

violated [the FMLA] was in good faith and that [Lazer Spot] had reasonable

grounds for believing that the act or omission was not a violation of [the FMLA].” 29

U.S.C. § 2617(a)(1)(A)(iii). Stated differently, Lazer Spot “must therefore show both

good faith and reasonable grounds” for not reinstating Ms. King. Chandler, 283

F.3d at 827 (emphasis in original).

However, instead of affirmatively demonstrating that it acted reasonably and

in good faith, Lazer Spot asserts that Ms. King’s allegations fail to show bad faith or

unreasonable grounds. (Id. (“These allegations thus fail to provide any support for

the notion that Lazer Spot acted in bad faith or relied on unreasonable grounds for

its actions … None of the facts alleged by Plaintiff move the needle toward a

plausible showing that Lazer Fact acted in bad faith or had unreasonable grounds

for its actions.”).) This is insufficient. The closest Lazer Spot comes to carrying its

burden is its statement that “Lazer Spot’s inquiry was made with respect to its own

internal policies for required documentation, which are grounded in the entirely

reasonable justification of safety.” (ECF No. 21, PAGEID # 921.) But, as explained

above, Lazer Spot could not legitimately require additional documentation from Ms.

King to assess safety pursuant to its own policies.

IV. CONCLUSION

As the circumstances of this case emphasize, the ADA and the FMLA are two

distinct regulatory schemes, and the prohibitions of these different statutes are not

coextensive. For the reasons set forth above, Lazer Spot’s Motion for Summary

Judgment (ECF No. 19) is GRANTED in part and DENIED in part, and King’s

Motion for Partial Summary Judgment (ECF No. 20) is GRANTED in part and

DENIED in part. The Court will set a damages trial by separate order.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE