Lopez

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MARCELA LOPEZ, )

)

Plaintiff, )

)

v. ) Case No. 3:24-cv-00245

) Judge Aleta A. Trauger

WILLIAMSON COUNTY, TENNESSEE, )

)

Defendant. )

MEMORANDUM

Plaintiff Marcela Lopez, previously employed by defendant Williamson County,

Tennessee (“the County”), filed this lawsuit asserting claims for disability discrimination in

violation of the Americans with Disabilities Act (“ADA”) and the Tennessee Disability Act

(“TDA”), discrimination on the basis of ethnic origin and race in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), and breach of an employment contract under Tennessee law.

(Compl., Doc. No. 1.)1 Now before the court are the County’s Motion for Summary Judgment

(Doc. No. 29) and Lopez’s Motion for Partial Summary Judgment (Doc. No. 26) as to her breach

of contract claim only.

As set forth herein, the court finds that the material facts are undisputed and that the

defendant is entitled to judgment as a matter of law on all outstanding claims set forth in the

Complaint. Accordingly, the defendant’s motion will be granted in its entirety, and the plaintiff’s

motion will be denied.

1 The parties settled and the court approved the dismissal of an additional claim under the

Fair Labor Standards Act. (See Doc. Nos. 1, 23–25.)

I. STANDARD OF REVIEW – RULE 56

Under Federal Rule of Civil Procedure 56, any party “may move for summary judgment,

identifying each claim or defense . . . on which summary judgment is sought.” Fed. R. Civ. P.

56(a). “The court shall grant 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.” Id.

By its very terms, Rule 56 anticipates “that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis in original). In other words, even if genuine,

a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating

a motion for summary judgment. On the other hand, “summary judgment will not lie if the dispute

about a material fact is ‘genuine.’” Id. at 248.

“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect

the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d

718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence

is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of

Detroit, 891 F.3d 622, 630 (6th Cir. 2018).

In ruling on a motion for summary judgment, it is not the judge’s function to make

credibility determinations, “weigh the evidence[,] and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In determining

whether a genuine issue of material fact exists, the court must assume as true the evidence of the

nonmoving party and draw all reasonable inferences in that party’s favor. Id. at 255; Tolan v.

Cotton, 572 U.S. 650, 660 (2014). However, the “mere existence of a scintilla of evidence in

support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S.

at 252. “There must be evidence on which the jury could reasonably find for the [nonmoving

party].” Id. The inquiry, therefore, “asks whether reasonable jurors could find by a preponderance

of the evidence that the” nonmoving party is entitled to a verdict. Id.

Finally, the standard of review for cross-motions for summary judgment does not differ

from the standard applied when a motion is filed by only one party to the litigation. Ferro Corp.

v. Cookson Grp., PLC, 585 F.3d 946, 949 (6th Cir. 2009); Taft Broad. Co. v. United States, 929

F.2d 240, 241 (6th Cir. 1991). On cross-motions for summary judgment, “the court must evaluate

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

inferences against the party whose motion is under consideration.” Taft, 929 F.2d at 248.

At the same time, however, a defendant seeking summary judgment only needs to show

that the plaintiff lacks sufficient evidence to prove a single element of a particular claim in order

for the defendant to be entitled to summary judgment on that claim. See Laster v. City of

Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014) (“As the party moving for summary judgment,

Defendants bear the burden of showing the absence of a genuine issue of material fact as to at least

one essential element of Plaintiff’s claim.”). Conversely, when a plaintiff moves for summary

judgment on her own claims, for which she carries the burden of proof and persuasion at trial, she

faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel

v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1056 (6th Cir. 2001). She must show the absence of a

material factual dispute on all of the essential elements of her claim. See Surles v. Andison, 678

F.3d 452, 455–56 (6th Cir. 2012) (“In cases where the party moving for summary judgment also

bears the burden of persuasion at trial, the party’s ‘initial summary judgment burden is higher in

that it must show that the record contains evidence satisfying the burden of persuasion and that the

evidence is so powerful that no reasonable jury would be free to disbelieve it.’” (quoting Cockrel,

270 F.3d at 105)). Summary judgment in favor of the party with the burden of proof “is

inappropriate when the evidence is susceptible of different interpretations or inferences by the trier

of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

In light of this standard, if the defendant establishes that it is entitled to summary judgment

on a particular claim, then a plaintiff’s cross-motion on the same claim must automatically be

denied. Accord, e.g., Zammit v. Shire US, Inc., 415 F. Supp. 2d 760, 769 n.8 (E.D. Mich. 2006)

(“Given the Court’s ruling that Defendant is entitled to summary judgment in its favor . . . , it

readily follows that Plaintiff’s cross-motion for summary judgment must be denied.”).

II. THE DEFENDANT’S MOTION

A. Facts2 and Procedural History

Lopez began working for the County in 2019 as a scales operator at the Williamson County

Solid Waste Department (the “department”). She was promoted to the position of Administrative

Support III approximately six months later. (Lopez Dep. 54.3) She was terminated on June 13,

2023. This lawsuit is about that termination and the events leading up to it.

Due to a serious medical condition requiring surgery, Lopez requested and was granted

leave under the Family and Medical Leave Act (“FMLA”) in December 2022, with an initial

“anticipated return date” of February 21, 2023. (Kennedy Jan. 5, 2023 letter, Doc. No. 33-4, at 52.)

2 The facts for which no citation is provided are drawn directly from Plaintiff’s Response

to Defendant’s Statement of Undisputed Facts (“PRSUF”) (Doc. No. 43) and are undisputed for

purposes of the defendant’s Motion for Summary Judgment. All facts set forth herein are

undisputed for purposes of the defendant’s motion unless otherwise indicated.

3 The plaintiff filed excerpts from her deposition (Doc. No. 27-2), and both the plaintiff

and the defendant then filed the complete transcript of her deposition, spread over numerous

documents (Doc. Nos. 33-1 through 33-5, 42-2 through 42-5). Similarly, the plaintiff filed excerpts

from the deposition of Clair Cochran (Doc. No. 27-3), and then both parties filed the complete

Cochran transcript with exhibits, again spread out over multiple filings (Doc. Nos. 32-1, 42-6

through 46-8). For ease of reference, the court will cite both of these depositions using the original

pagination of the transcripts as provided by the court reporter.

In the letter confirming the approval of FMLA leave, a representative of the Williamson County

Human Resources (“HR”) Department also directed the plaintiff to “keep [her] supervisor

informed of the status of [her] condition and any change of expected date of [her] return to duty.”

(Id.)4

The plaintiff was not able to return to work on February 21, 2023, but Williamson County

approved Lopez’s requests to extend her FMLA leave until it was exhausted on March 26, 2023.5

In a letter dated March 7, 2023, an HR notified Lopez that any leave after March 26, 2023 would

need to be coordinated through, and approved by, department director Mac Nolen. The same letter

reminded Lopez to keep her supervisor informed of the status of her condition and any change in

her expected date of return. As of March 7, 2023, Lopez’s expected date of return was noted to be

April 1, 2023. (Doc. No. 33-5 at 20; see also Lopez Dep. 112.)

Lopez was not able to return to work on April 1, 2023, but, following the exhaustion of her

FMLA leave, Williamson County granted Lopez’s request to extend her non-FMLA leave,6 first

4 The County explains that the plaintiff received various benefits while on leave that were

separate from the protected leave benefit afforded by the FMLA. Specifically, the County makes

Temporary Disability Benefits (“TDBs”) available to all full-time employees who experience a

qualifying event, for a period of six months following the date of the qualifying event. The plaintiff

participated in this benefit and received TBD payments through this program through June 9, 2023.

(See Doc. No. 32-3, Cochran Aff. ¶¶ 2–3.) In addition to TBDs, Lopez opted to purchase both

short-term and long-term disability plans offered by Williamson County that are administered by

the insurance company, not the County. (Id. ¶ 4.)

The County also explains that, because Lopez was applying for FMLA Leave and TDBs

for the same period of absence, the TDB Application was accepted as proof of medical necessity

for both FMLA leave and TDBs, to reduce the amount of documentation required from Lopez.

(See Cochran Dep. 25–26.)

5 The County explains that the plaintiff’s FMLA leave actually terminated two weeks prior

to March 26, 2023, on March 12, but that the plaintiff was given an additional two weeks, or

fourteen weeks total, due to “a mathematical error in calculating hours.” (Cochran Dep. 103.)

6 For reasons that are not clear, the plaintiff purports to dispute this statement. Her objection

and her citations to the record are not responsive to the statement and do not serve to refute it. (See

PRSUF ¶ 6.) Regardless, it is clear from the record that the plaintiff was not able to return to work

from March 31, 2023 through May 15, 2023, and then from May 15, 2023 through June 12, 2023.

(Lopez Dep. 133–35; Lopez Dep. Exs. 23–24, Doc. No. 33-5 at 22–26.) Before her FMLA leave

expired, Lopez spoke by telephone with Clair Cochran, the County’s HR Director, regarding the

possibility of continued leave following the expiration of her FMLA leave. (Lopez Dep. 113–14.)

Lopez understood that it was her responsibility to keep her supervisor and the HR office

informed of her condition and when she would be able to return to work. (Lopez Dep. 94.) The

Personnel Policies for Williamson County Government expressly require that any request for

FMLA leave due to an employee’s serious medical condition be supported by a “certification”

filled out by the employee’s medical provider on a form provided by the County. (Personnel

Policies § 4.06, Doc. No. 32-3 at 179.) “The certification must include the date the serious health

condition began, [and] how long the condition is expected to continue[.]” (Id.) In addition to

submitting this certification, the employee on leave “is required to report in periodically to his/her

supervisor while on FMLA leave. The employee shall report in weekly, or . . . as frequently as is

possible given the employee’s medical condition. The employee is expected to indicate whether

he or she intends to return to work.” (Id.)

On May 11, 2023, Lopez submitted a note from her treating physician stating that she

needed to be excused from work “for 5/15/23–6/12/23.” (Lopez Dep. Ex. 24, Doc. No. 33-5 at 26;

Lopez Dep. 134.) On May 12, Lopez texted the director of her department, Mac Nolen, to inform

him that her “new projected return date [was] June 12th.” (Doc. No. 33-5 at 31.)

On May 24, 2023, Patti Hawkins, an employee in the County’s Benefits Department, sent

a letter to Lopez (the “May 24 letter”) referencing the latest physician statement as “indicat[ing]

on April 1 and that her requests to extend her non-FMLA leave were granted, at least through June

12, 2023, as discussed below.

that [Lopez’s] return to work date will be June 12, 2023.” (Lopez Dep. Ex. 25, Doc. No. 33-5 at

27.) The purpose of Hawkins’ letter was to notify the plaintiff as follows:

Please be advised that since you exhausted your FMLA leave on March 26, 2023

and your Temporary Disability Program [wil]l end on June 10, 2023, you will be

on uncompensated leave. For this reason you will be offered continuation of

benefits through COBRA as of June 11, 2023.

(Id.)

On June 2, 2023,7 Lopez returned to her doctor for an appointment and, at the same time,

dropped off another leave certification form for her doctor to complete. (Lopez Dep. 143, 155,

186–87.) She apparently also emailed the form to her doctor’s office on June 2, 2023. (See Doc.

No. 45-1 at 2–7.) During her appointment on June 2, 2023, Lopez and her provider discussed the

fact that she still “needed to heal” from her prior surgeries and would need another surgery in the

fall. (Id. at 143.) The plaintiff testified that her doctor told her she could go back to work and that

the doctor could sign a paper requesting accommodations. However, the doctor did not sign any

request for accommodations. Instead, “[i]n the meantime,” the doctor indicated that she would

give Lopez additional time to heal, because she was still “bleeding a lot” and “leaking and all that

stuff,” so her doctor wanted her to “stay out of work till August 11th,” with the hope that she could

perhaps go back to work after August 11, 2023 with accommodations. (Id. at 144.) Asked to clarify

whether her doctor indicated that she could go back to work immediately with accommodations or

after August 11, 2023 with accommodations, Lopez insisted that her doctor told her she could go

back to work immediately with accommodations. (Id. at 145.) She added, “[a]nd she gave me that

7 In an affidavit, Lopez states that she signed the letter during a doctor’s appointment on

June 6, 2023 (Doc. No. 27-1, Lopez Aff. ¶ 8), even though her signature on the form is dated June

2, 2023 (Doc. No. 33-5 at 33), and her medical records show that this appointment occurred on

June 2, 2023 (Doc. No. 32-5 at 2). Lopez’s assertion in an affidavit is not sufficient to create an

issue of fact; even if it were, whether the visit occurred on June 2, 2023 or June 6, 2023 is not a

material fact.

piece of paper.” (Id.) “[T]hat piece of paper,” however, is the certification form her doctor

completed indicating that Lopez was “totally disabled and unable to work” “[f]rom 12/05/2022

[t]hru 8-11-2023” and would “need another surgery at the end of the year.” (Doc. No. 33-5 at 33.)

Lopez’s medical treatment notes for that encounter state, in relevant part, that Lopez was “scared

to go back to work due to her issues, wants to extend fmla” and that she was “on long term

disability for work at this time due to ongoing surgical complication . . . and plans to stay on this

through the next surgery. Paperwork will need to be filled again to extend [leave] through August.”

(Doc. No. 32-5 at 2–3.) The plaintiff agreed that she asked her physician to keep her off work until

August 11 because she felt that she needed more time to heal. (Lopez Dep. 146.) And then she

contradicted herself, stating that her physician’s treatment note was “wrong.” (Id. at 147.) Lopez

testified that she wanted to go back to work right away with accommodations. (Id.) However, she

also conceded that she never told the County that she could return to work with accommodations.

(Id. at 148–49.) The plaintiff claims she was not given the chance to ask for accommodations and

that the County never asked her if she needed accommodations. (Id. 152, 154.)

The doctor’s office did not return the completed form to Lopez indicating that she needed

leave through at least August 11, 2023 until 12:15 p.m. on June 13, 2023. (See Doc. No. 45-1 at

13–14), shortly after she was terminated. Regardless, between her doctor’s visit on June 2 and her

termination on June 13, 2023, Lopez did not talk to anyone in the Benefits Department or HR, to

her director Mac Nolen, or to her direct supervisor, Janine (Lehrer) Sullivan. (Lopez Dep. 155–

56.)

Moreover, while there was some confusion about whether the plaintiff’s expected return to

work date was June 12, 2023 (as she told Nolen and as stated in Hawkins’ letter), or June 13, 2023

(as indicated by the doctor’s certification that she needed leave through June 12), it is undisputed

that the plaintiff did not return to work on June 12, 2023 or June 13, 2023. (Lopez Dep. 189.)

Instead, on June 13, 2023, HR Director Clair Cochran called the plaintiff “right before lunch,”

initially leaving a voice message. The recording of the voice message was played during the

plaintiff’s deposition and transcribed by the court reporter. In that message, Cochran stated:

Hey, Marcela. This is Clair Cochran with Williamson County. Just wanted to touch

base with you. Please give us a call back. We haven’t heard from you, and we’re in

a position now we’re going to have to make a decision going forward. Just wanted

to communicate that to you today.

So let’s have a conversation via phone. . . .You may reach me at (615) 591-8529

. . . . Once again, Clair Cochran with Williamson County. Look forward to talking

with you. Bye-bye.

(Id. at 160.)

Lopez called Cochran back shortly after receiving the message. The plaintiff’s husband

recorded that telephone conversation (unbeknownst to Cochran), and Lopez later produced the

recording in discovery. The audio files (three separate files) were made an exhibit to Lopez’s

deposition, and they were played during the deposition and transcribed in their entirety as part of

the plaintiff’s deposition transcript. The defendant also submitted them as a collective exhibit in

support of its Motion for Summary Judgment. (Doc. No. 34.) The conversation, in relevant part,

went as follows:

MS. COCHRAN: This is Clair. May I help you?

MS. LOPEZ: Hey, Clair. This is Marcela Lopez. I missed your call earlier today .

MS. COCHRAN: Hey. Yes, hey, how are you?

MS. LOPEZ : Oh, I'm hanging in there. Not very well, as you can see. Well, you

know, of course.

MS. COCHRAN: Yeah. Yes, I kind of gathered when we didn’t hear from you

things aren’t progressing in the right trajectory as fast as we’d want them. But I

wanted to . . . you know, follow up and you let you know that unfortunately we’re

going to have to move forward in posting your position. But you are eligible for,

you know, rehire when you hopefully can recover and return back to work. But

we’ve just extended the leave, you know, way beyond FMLA coverage, which is

appropriate, and tried to work with you.

And right now, it’s essential to the operations—and I’m sure you can understand

that—to, you know, have the position filled. So I wanted to alert you to that,

Marcela, and at least give you the opportunity to tell me if there’s anything that’s

imminent as far as changing. Because, you know, we didn’t hear back from you on

the day that you were—you know, listed you were going to return from your

physician.

MS. LOPEZ: Okay. Come back again. Come back. Pardon?

MS. COCHRAN: Well, you were supposed to return on Monday. And that was the

documentation that we have on file. . . . Because we weren’t told otherwise that you

were going to extend that. Was there some paperwork that you’d sent in that we

didn’t—unfortunately didn’t receive maybe?

MS. LOPEZ: Yes. I was in talks with my doctor on Friday.

MS. COCHRAN: Uh-huh.

MS. LOPEZ : And her—the entire team. So we were in talks. And they’re debating

of when the date of the next surgery that’s going to—you know, it’s going to happen

in the fall. I’m not in no condition to return to work at this moment—

MS. COCHRAN: Right.

MS. LOPEZ: —as you can see. But I do have paperwork. And when you say “we,”

what do you mean we? You said that things aren’t—

MS. COCHRAN: We as a company. You know, we as your employer and, of

course, as your HR department. So, you know, Oksana [Kennedy], myself, others,

we work on receiving the paperwork. So your supervisor didn’t receive an

extension. Oksana didn’t receive an extension. But I’m glad to hear that you sent

that in. But you just mentioned that you had another surgery coming up in the fall

and that you’re not able to return to work at this time.

And I’m—I hate to deliver the tough news, but we aren’t in a position where we

can continue to hold this position open. You’ve already exhausted your family

medical leave protection. And we’ve extended that way beyond that period of time,

which is 12 weeks. And so we are way beyond 12 weeks at this point.

MS. LOPEZ: Yes, correct. But I’ve been in contact with Mac [Nolen] the entire

time and with Janine [(Lehrer) Sullivan]. The paperwork is there. I just—

MS. COCHRAN: [unintelligible] I understand. I talked to Mac last night. But he

too had not received any information. He expected you to return yesterday.

MS. LOPEZ: Right.

MS. COCHRAN: And had not heard anything back. So, you know, right now,

there’s not anything that’s imminent as far as an improvement, Marcela. And so

unless there’s something that is imminent, we can’t extend the leave any further.

That’s just not a practice that we have.

(Id. at 166–70.)

At this point, Lopez’s husband interjected, and Lopez and her husband together explained

that Lopez had just received her physician assessment back. (Id. at 170 (“I just got it from the

doctor.”).) Both Lopez and her husband became angry and accused the County (and Cochran) of

“harassment” and cited delays in the short-term disability payments. (Id. at 171–72.) The

conversation proceeded, with Cochran again explaining that Lopez’s FMLA leave ended as of

March 26, 2023 and that the County was not able to further extend her leave, though Lopez

remained “eligible to reapply.” (Id. at 176; see id. at 179.) Cochran eventually terminated the very

contentious conversation.8

Later that day, around 2:00 p.m., Lopez forwarded her physician’s assessment, indicating

that she was “totally disabled and unable to work” “[f]rom 12/05/2022 [t]hru 8-11-2023” and

would “need another surgery at the end of the year,” to Patricia Hawkins, Oksana Kennedy, and

Gina Crawford. (Id. at 186; see also Doc. No. 33-5 at 32–33; Doc. No. 45-1 at 8–9.) Kennedy

forwarded it to Cochran. (Doc. No. 33-5 at 32.) The County considered that the plaintiff had by

that time already been terminated and that the physician’s assessment did not change the situation,

particularly because the plaintiff did actually request an extension of her leave. (Cochran Dep.

109.)

8 After her termination, the plaintiff continued to receive long-term disability insurance

payments. (Lopez Dep. 190.)

The defendant submitted the Affidavit of Janine (Lehrer) Sullivan, the plaintiff’s direct

supervisor during her employment with the department. Sullivan is Administrative Manager for

the department. (Doc. No. 32-2, Sullivan Aff. ¶ 1.) According to Sullivan, Lopez’s job at the time

she took leave was Administrative Support III, and there was only one Administrative Support III

position in the department. (Id. ¶ 2.) Lopez’s duties primarily consisted of providing administrative

support to assist Sullivan, though she also operated the scales every other Saturday and sometimes

during the week when the regular scales operator was not available. (Id.) While Lopez was on

leave, Sullivan was required to perform her own duties as well as those of Lopez, including

working the scales every other Saturday, which put a “strain on [Sullivan] and on the Department,”

making it difficult for Sullivan to focus on her own tasks or to take any time off and requiring her

to take frequent overtime. (Id. ¶¶ 6–7.) Although the County hired a part-time employee to cover

Lopez’s Saturday shifts a few months into Lopez’s leave, Sullivan continued to operate under the

strain of performing two jobs during Lopez’s absence. (Id. ¶ 7.) “As [Lopez’s] leave extended, the

burden on [Sullivan] and the Department increased to the point that it was no longer tenable to

continue without someone serving in the administrative support role.” (Id.)

As the plaintiff herself points out, she had a history of failing to timely update the County

as to needed extensions of her leave and her expected return to work date, which the County

repeatedly overlooked, allowing retroactive extensions of her leave. For example, on March 6,

2023, a Williamson County Benefits Clerk notified Lopez that she had submitted a physician

certification stating that she would be “returning to work on 2/20/23” and a subsequent

certification stating she would be out “3/8/23 thru 3/31/23,” so she needed to provide

documentation for the “gap between 2/20 and 3/8.” (Doc. No. 33-5 at 16.) Similarly, although her

physician certified that she needed to be out through March 31, 2023, the plaintiff did not return

to work on April 1 and, instead, contacted HR on April 7 to inform the office that an additional

surgery had been scheduled for April 10; on April 12, she submitted a certification dated April 7,

2023 stating that she needed additional leave from March 31, 2023 through May 15, 2023. (See

Doc. No. 33-5 at 20–24.)

Based on that history and the May 24 letter advising her that, when her short term disability

ended on June 10, 2023, she would begin “uncompensated leave” status (Doc. No. 33-5 at 27), the

plaintiff insists that she believed “that she was protected and had entered uncompensated leave as

of June 11, 2025.” (Lopez Dep. 174; see also Doc. No. 27-1, Lopez Aff. ¶ 6 (“When I received the

letter on May 24, 2023, I believed that Mac Nolen was holding my job for me by providing

uncompensated leave until my medical situation allowed me to return.”).) She also contends that

her doctor’s last assessment was “forwarded to Williamson County by her doctor on June 6th”

(PRSUF ¶ 16), but the record citations in support of that assertion do not support it (see Lopez

Dep. 142–143, 168-169, 186; Ex. 27, Doc. No. 33-5 at 32), and it is contradicted elsewhere in the

record, as set forth above (see, e.g., Lopez Dep. 168–70 & Doc. No. 33-5 at 32; see also Doc. No.

45-1 at 13–14, 8–9 (indicating that the plaintiff received the form from her doctor’s office by email

on June 13, 2023 and forwarded it to Patti Hawkins the same day)).

As of the date of her deposition, the plaintiff continued to receive long-term disability

insurance payments. (Lopez Dep. 190.) She testified that, to continue receiving these benefits, her

physician must periodically certify to the insurance company that it is necessary for her to be off

work because of her medical condition. (Id.) Lopez applied for Social Security disability benefits

in January 2024. (Doc. No. 32-4 at 36.) No additional information regarding approval or

disapproval of her application is in the record.

In any event, after her termination, the plaintiff filed a charge of discrimination with the

EEOC. (Lopez Dep. 205.) She was not represented by counsel at the time. (Id. at 205–06.) The

narrative in support of her claims states:

The above-named employer hired me on September 02, 2020, as an Administrator

Support. The above-named employer employs more than 20 employees.

I am a person with a disability. As a result, in December 2022, I requested and was

granted time off. I was granted FMLA, Short-term and long-term disability

benefits. I [sic] May 2023, I received a letter from Respondent reminding me that

my current physician statement indicates my return-to-work date will be June 12,

2023. In the letter I also was reminded that my FMLA exhausted on March 26,

2023, and my temporary disability program will end on June 10, 2023, on

uncompensated leave. Due to needing another surgery at the end of the year

(December 2023) my doctor placed me out of work thru August 11, 2023.

I believe I have been discriminated and retaliated against because of my disability,

in violation of the Americans with Disabilities Act Amendments Act of 2008 and

because of my race (Hispanic) and religion, in violation of Title VII of the Civil

Right Act of 1964, as amended and because of my age (48), in violation of the Age

Discrimination in employment Act of 1967, as amended.

(Doc. No. 33-5 at 37–38.)

The plaintiff testified that she believed she was replaced by a less qualified person, but she

also agreed that she did not know what that person’s experience was. (Lopez Dep. 212.)

She also identified several White, male County employees who were off work for medical

reasons and who, she believed, were allowed to take more than six months’ leave without being

terminated. (Id. at 213–16.) She conceded that she could not specifically state the length of their

leaves or the specific circumstances under which they took leave. (Id. at 215.) She also did not

know whether any of these individuals took extended leave after Cochran became HR Director,

because she did not know what date Cochran took that position. (Id. at 216.)

According to the County, the personnel records for each of the individuals identified by

Lopez during her deposition indicate that none of them took extended medical leave after the

expiration of FMLA leave for anywhere near six months, and most of them did not take FMLA

leave at all, instead taking time off accrued pursuant to Williamson County sick and vacation leave

policies. (See Cochran Aff. ¶¶ 12–19.) Only one of the employees identified by the plaintiff took

additional leave after the expiration of his twelve weeks (480 hours) of FMLA leave, for a total of

one week (40 hours). (Id. ¶ 14.) Moreover, the County employs “several truck drivers and heavy

equipment operators, so if employees in those positions needed leave, the work can be distributed

amongst multiple other employees.” (Sullivan Aff. ¶ 8.) This was not true of Lopez’s position, as

there was only one Administrative Support III position. (Id.)

After receiving her Determination and Notice of Rights from the EEOC on December 20,

2023 (Doc. No. 1-1), the plaintiff filed this lawsuit on March 4, 2024. As now relevant, she asserts

discrimination claims under federal and state law, and a state law breach of contract claim. The

defendant seeks summary judgment on all of these claims. The defendant filed a Memorandum in

support of its motion (Doc. No. 30), a Statement of Undisputed Material Facts (Doc. No. 31), and,

as indicated above, a substantial quantity of evidentiary material to support its factual statements.

The plaintiff filed a Response in opposition to the defendant’s motion (Doc. No. 42), her Response

to the Statement of Facts (Doc. No. 43), and additional (and often duplicative) evidentiary material.

The defendant filed a Reply in further support of its motion. (Doc. No. 48.)

B. Discussion

1. ADA Claims

In her Complaint, Lopez alleges that the County violated the ADA when it (1) failed to

reasonably accommodate her disability by offering or providing more bathroom breaks and

allowing her to work “with her catheter or while wearing diapers” (Compl. ¶¶ 45–46) and (2) when

it terminated her because of her disability or perceived disability (id. ¶ 47). The County moves for

summary judgment on both of these claims. In her Response, the plaintiff pivots, abandoning her

failure to accommodate claim based on the County’s failure to offer additional bathroom breaks

and arguing instead that she requested and was denied the “reasonable accommodation of time off

of work to recover from her surgery.” (Doc. No. 42 at 11.)9

a) ADA Failure to Accommodate

The plaintiff testified during her deposition that she did not request an accommodation in

the form of additional bathroom breaks or permission to wear adult diapers, and she does not argue

now that she could have returned to work in June 2023, even with such accommodations. The

court therefore finds, without need for further discussion, that the defendant is entitled to summary

judgment on the plaintiff’s claim that the County failed to accommodate her by providing

additional bathroom breaks or allowing her to wear adult diapers. The plaintiff argues now that

she should have been accorded additional unpaid leave as an accommodation for her disability.

The ADA prohibits “discriminat[ion] against a qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a). The ADA broadly defines discrimination to include “not making

reasonable accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability who is an applicant or employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship on the operation of the

business of such covered entity.” Id. § 12112(b)(5)(A); see also Fisher v. Nissan N. Am., Inc., 951

F.3d 409, 415 (6th Cir. 2020).

9 Lopez also argues that the defendant violated the ADA separately by improperly

conducting a “medical examination” or “disability inquiry” prohibited under 42 U.S.C.

§ 12112(d)(4), beyond what was authorized by the FMLA. (See Doc. No. 42 at 5–7.) However,

she did not plead an FMLA claim or any claim for improper disability inquiry, and she is barred

from bringing a new legal claim in response to a summary judgment motion. Bridgeport Music,

Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (citing Tucker v. Union of Needletrades,

Indus. and Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005)). Regardless, the FMLA permits

employers to require requests for leave to be “supported by a certification issued by the health care

provider of the eligible employee,” 29 U.S.C. § 2613(a), and the plaintiff offers to evidence

suggesting that the information requested on the County’s certification forms required more

information than that permitted by 29 U.S.C. § 2613(b).

Because failure to accommodate is listed in the ADA’s definition of disability

discrimination, “claims premised upon an employer’s failure to offer a reasonable accommodation

necessarily involve direct evidence (the failure to accommodate) of discrimination. . . . [I]f the

fact-finder accepts the employee’s version of the facts, no inference is necessary to conclude that

the employee has proven this form of discrimination.” Fisher, 951 F.3d at 416 (quoting Kleiber v.

Honda of Am. Mfg., 485 F.3d 862, 868 (6th Cir. 2007)).

Under the direct-evidence framework, the plaintiff must show that

(1) she was disabled within the meaning of the ADA, (2) she was otherwise

qualified for her position . . . ; (3) the defendant knew or had reason to know about

her disability; (4) she requested an accommodation; and (5) the defendant failed to

provide the necessary accommodation.

Kirilenko-Ison v. Bd. of Educ. of Danville Indep. Schs., 974 F.3d 652, 669 (6th Cir. 2020) (citing

Brumley v. United Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018)). In this case, there is no

dispute, for purposes of the defendant’s motion, that the plaintiff was disabled and that the

defendant knew about her disability.

To be “otherwise qualified,” a plaintiff must be able to perform her job “(a) without

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

(c) with a proposed reasonable accommodation.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d

862, 869 (6th Cir. 2007). The plaintiff bears the initial burden of showing “that an

‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” Fisher, 951

F.3d at 419 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002)). “The defendant then

must show either ‘special (typically case-specific) circumstances that demonstrate undue hardship

in the particular circumstances,’ or that the proposed accommodation eliminates an essential job

requirement.” Id. (first quoting U.S. Airways, 535 U.S. at 402; then citing Kleiber, 485 F.3d at

869). The defendant bears the burden of “proving that a challenged job criterion is essential, and

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

upon” it. Id. at 417 (quoting Kleiber, 485 F.3d at 869). Generally, whether a proposed

accommodation is reasonable is a question of fact. Id. at 419 (citing Cassidy v. Detroit Edison Co.,

138 F.3d 629, 634 (6th Cir. 1998)).

Williamson County argues that (1) prior to her termination, Lopez did not request any

accommodation other than leave through June 12, 2023, which was granted; (2) the plaintiff was

not “otherwise qualified” for her job, because her doctor’s certification established that she was

“totally disabled and unable to work” through August 11, 2023, and, even if the plaintiff had

submitted her doctor’s certification prior to her termination, continued medical leave under the

circumstances was not a reasonable accommodation. In addition, Williamson County argues that

extending the plaintiff’s leave further would have imposed an undue hardship.

The plaintiff correctly articulates the law concerning medical leave as a reasonable

accommodation, and she argues that medical leave in her case was a reasonable accommodation

because “Williamson County provided paid disability leave for up to six months. Williamson

County provides uncompensated leave of up to 12 months upon the approval of the Department

Head. Ms. Lopez was approved for both of these leaves, the[n] discharged.” (Doc. No. 42 at 13

(citing Williamson County Personnel Policies § 4.05, Doc. No. 32-1 at 177).)

In the Sixth Circuit, “‘medical leave can constitute a reasonable accommodation’ under

certain circumstances.” King v. Steward Trumbull Mem'l Hosp., Inc., 30 F.4th 551, 561 (6th Cir.

2022) (quoting Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 394 (6th Cir. 2017)).

Likewise, “an inability to work while on such leave does not mean that an individual is

automatically unqualified.” Id. at 562 (quoting Terre v. Hopson, 708 F. App’x 221, 228–29 (6th

Cir. 2017)). In assessing the reasonableness of a request for extended leave as an accommodation,

the court must consider “(1) the amount of leave sought; (2) whether the requested leave generally

complies with the employer’s leave policies; and (3) the nature of the employee’s prognosis,

treatment, and likelihood of recovery.” Id. (citations omitted). Generally, however, “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. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000). Thus, when the

employer has “already provided a substantial leave, an additional leave period of a significant

duration, with no clear prospects for recovery, is an objectively unreasonable accommodation.”

Id.; see also Caldwell v. MGM Grand Detroit, LLC, No. 23-1436, 2024 WL 2182406, at *3 (6th

Cir. Jan. 5, 2024) (“[A]dditional leave is an objectively unreasonable accommodation where an

employee has already received significant amounts of leave and has demonstrated ‘no clear

prospects for recovery.’” (quoting Williams, 847 F.3d at 394)).

Under this standard, the plaintiff’s request for additional leave as an accommodation was

objectively unreasonable. First, there is no dispute in this case that, during their June 13, 2023

telephone call, Cochran gave Lopez the opportunity to tell her if circumstances had changed or

were expected to change imminently. (See Lopez Dep. at 167 (“So I wanted to alert you to that,

Marcela, and at least give you the opportunity to tell me if there’s anything that’s imminent as far

as changing.”).) In response, Lopez indicated only that she had spoken with her doctor, that she

was in no condition to return to work at that moment, and that she was going to need another

surgery sometime in the fall. (Id. at 168.) Given that information, Cochran told Lopez that the

County could not continue to hold her position open. (Id.) Lopez’s response to the news that she

was being terminated indicated that she had expected her job to be held open indefinitely. (Id. at

169.) Cochran, however, explained that “unless” there was “anything that’s imminent as far as an

improvement,” the County could not extend Lopez’s leave any further. (Id. at 170.) Lopez’s

reaction to this news could be reasonably interpreted as a request for additional indefinite leave.

She did not, at that time, request leave through a specific date or indicate that she would definitely

be able to return to work—with or without other accommodations—at any time in the foreseeable

future. And she had not, as of the time of the telephone call, returned her doctor’s updated form

stating that she needed to be off work at least through August 11, 2023. As of the time she was

terminated, that is, Lopez had only vaguely indicated that she needed additional leave for an

indeterminate period of time. Her request for additional leave of indefinite duration, with an

additional surgery to be scheduled sometime in the fall, was objectively unreasonable.

Moreover, even if the court assumes, as the plaintiff claims (with no evidentiary support),

that she returned her updated medical certification to the County on June 6, 2023, the analysis does

not change. With respect to the length of the leave requested, the plaintiff had already received six

months of leave and was requesting an additional two months, at least. Eight months leave,

although less than a year, is a substantial period of time.

As for whether “the requested leave generally complies with the employer’s leave

policies,” King, 30 F.4th at 561, the Personnel Policies section of the employee manual to which

the plaintiff refers (titled “Leave of Absence”) states only that, “[a]fter consultation with Human

Resources, the Department Head may allow additional [medical] leave to that which the law

requires.” (Doc. No. 32-1 at 177.) The policy indicates that a department head may, in his or her

discretion, allow a leave of absence of a maximum of twelve months. (Id.) In addition, “[a]ll

personal [leaves of absence] are at the discretion of each Department Head and are not the right of

any employee.” (Id.) However, although her department head had the discretion to approve

additional leave under this policy, as discussed in greater detail below, there is no evidence that

any other employee in the plaintiff’s department had ever requested or received the amount of

leave the plaintiff had already taken.

Third, and most importantly, even though the last medical certification indicated that the

plaintiff needed to be off work through August 11, 2023, there was no guarantee that the plaintiff

would actually be able to return to work on that date. Rather, she had another surgery yet to be

scheduled, and she had already requested numerous extensions of her leave date. As of June 13,

2023, the plaintiff had no clear prospect of recovery by August 11, 2023. Again, “[a]dditional

leave is an objectively unreasonable accommodation where an employee has already received

significant amounts of leave and has demonstrated ‘no clear prospects for recovery.’” Caldwell,

2024 WL 2182406, at *3 (quoting Williams, 847 F.3d at 394); see also Cooley v. E. Tenn. Hum.

Res. Agency, Inc., 720 F. App'x 734, 741 (6th Cir. 2017) (“‘[T]he relevant inquiry is whether [the

employee] showed [her employer] a certain or credibly proven end to the leave.” A ‘vague

estimate’ of the date that an employee can return to her job is insufficient.” (first quoting Maat v.

Cty. of Ottawa, 657 F. App’x 404, 413 (6th Cir. 2016); and then citing Walsh, 201 F.3d at 727)).

Because the plaintiff’s request for additional leave as an accommodation was objectively

unreasonable under the specific factual circumstances presented here, the plaintiff’s FMLA claim

for failure to accommodate fails as a matter of law.

Moreover, even if there were some question as to the reasonableness of the request, the

County has established that additional leave would have posed an undue hardship on it. As the

County argues, Lopez was the only employee in the Administrative Support III position in her

department. (Sullivan Aff. ¶ 2.) The plaintiff acknowledges that in-person attendance is required

for that job. (Doc. No. 42 at 11 (“Ms. Lopez acknowledges that attendance is important in her

job.”).) During Lopez’s absence, her direct supervisor was required to perform her own job and

the plaintiff’s duties as well, putting a significant strain on the department and Sullivan, requiring

her to work overtime and making it difficult for her to schedule any time off work. (Sullivan Aff.

¶¶ 6–8.) The plaintiff contends only that the Personnel Policies allowed for uncompensated leave

of up to twelve months and that her department head “approved additional leave after March 26th

and told Ms. Lopez her job was safe.” (Doc. No. 42 at 17.) But, as set forth above, extended leave

is discretionary with the department head, and her department head had told Lopez her job was

safe back when she had a projected return-to-work date of April 1. (See Lopez Dep. 128

(confirming that the last time she had a conversation with Nolen during which he told her her “job

was safe” was mid-March 2023).)

The defendant has presented unrebutted proof that extending the plaintiff’s uncompensated

leave would have posed an undue hardship on it. For this reason, too, the County is entitled to

summary judgment on the plaintiff’s failure-to-accommodate claim.

b) ADA Discrimination

The plaintiff separately claims that the County violated the ADA when it terminated her

because of her disability. The defendant moves for summary judgment on this claim as well,

arguing that the plaintiff cannot establish a prima facie case of disability discrimination and that,

even if she could, she cannot refute the defendant’s non-discriminatory reason for the

termination—that she was terminated because she did not return to work on her expected return-

to-work date or properly request an extension of her leave and, even if she had, the County had no

obligation to extend her leave indefinitely, with no clear prospect of a return date.

The plaintiff’s argument in support of this claim is confusing, to say the least. She appears

to conflate her eligibility for Temporary Disability Benefits—whether short-term or long-term—

with her work status. However, the fact that she was receiving disability benefits did not guarantee

her any particular length of leave.

Regardless, the plaintiff does not respond to the defendant’s argument in support of

summary judgment on this claim, makes no attempt to show that similarly situated employees were

treated more favorably than she was, and has not tried to refute the County’s proffered reason for

her termination. The County is entitled to summary judgment on this claim.

2. TDA Claim

As the County points out, the TDA does not contain an accommodation requirement. Thus,

under Tennessee law, “an employer does not violate the TDA by failing to provide a reasonable

accommodation to assist an employee in performing the duties of his or her job. If a claimant needs

an accommodation to be capable of performing the essential functions of the position, the claimant

is not considered to be qualified for the job and may not look to the TDA for protection.” Black v.

City of Clarksville, No. M2020-01580-COA-R3-CV, 2022 WL 122615, at *5 (Tenn. Ct. App. Jan.

13, 2022) (citations omitted). In this case, there is no dispute that the plaintiff could not have

returned to work on June 13 without an accommodation and, therefore, that the plaintiff’s TDA

claim fails.

The plaintiff does not address her TDA claim in response to the defendant’s Motion for

Summary Judgment, and it is clear that the claim fails as a matter of law. The County will be

granted summary judgment on this claim as well.

3. Title VII Claim—Race/Ethnic Origin Discrimination

The County argues that Lopez’s Title VII claim for race or ethnic discrimination should be

dismissed for failure to exhaust and, alternatively, for lack of evidence. The court finds that the

claim fails on the merits and, therefore, does not reach the defendant’s argument that the plaintiff

did not adequately exhaust this claim.

a) Legal Standards

Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1).

A plaintiff may prove discrimination in violation of Title VII using direct evidence or

indirect evidence. Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 606 (6th Cir. 2019).

“[D]irect evidence is evidence which, if believed, requires the conclusion that unlawful

discrimination was at least a motivating factor. With direct evidence, the existence of unlawful

discrimination is ‘patent.’” Weberg v. Franks, 229 F.3d 514, 524 (6th Cir. 2000) (quoting Bartlik

v. U.S. Dep’t of Labor, 73 F.3d 100, 103 n.5 (6th Cir. 1996)). “[D]irect evidence of discrimination

does not require a factfinder to draw any inferences in order to conclude that the challenged

employment action was motivated at least in part by prejudice against members of the protected

group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 2003). “In direct evidence cases, once

a plaintiff shows that the prohibited classification played a motivating part in the employment

decision, the burden of both production and persuasion shifts to the employer to prove that it would

have terminated the employee even if it had not been motivated by impermissible discrimination.”

Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

Claims reliant on indirect evidence are typically analyzed under the familiar three-part

“framework first set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802–03 (1973).”

Redlin, 921 F.3d at 606. At the first step of that inquiry, the plaintiff bears the “‘initial burden’ of

‘establishing a prima facie case’ by producing enough evidence to support an inference of

discriminatory motive.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 308 (2025) (quoting

McDonnell Douglas, 411 U.S. at 802). Once the plaintiff makes out a prima facie case, the burden

shifts to the employer to offer a “legitimate, nondiscriminatory” reason for its actions. Blount v.

Stanley Eng’g Fastening, 55 F.4th 504, 510 (6th Cir. 2022) (citing White v. Duke Energy-Ky., Inc.,

603 F. App’x 442, 446 (6th Cir. 2015)); see also Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 253 (1981)). If it does so, the employee must then “‘produce sufficient evidence from which

a jury could reasonably reject [the employer’s] explanation of why it fired’ the employee and

conclude that the proffered reason was merely a pretext for the true discriminatory motive.” Id.

(quoting Miles v. S. Cent. Hum. Res. Agency, 946 F.3d 883, 888 (6th Cir. 2020)).

b) Direct Evidence

Lopez argues that she can prove discrimination based on ethnic origin using direct

evidence. (Doc. No. 42 at 19.) As such “direct” evidence, she points to “ouch moments”10 during

her employment that “she believes were based on her Hispanic ethnic origin.” (Id.) Such “ouch”

moments include her supervisor’s refusal to allow Lopez to use the “nice” gloves when picking up

trash from around the scales, to eat cookies and other food brought to the office, to attend

administrative meetings, to accept “small gratuities” offered by grateful customers, or to park near

the front door, even though she allowed some of the other employees to do these things. (Id. (citing

Lopez Dep. 36–44).)

Lopez also testified that her supervisor “had a special section of the people that she didn’t

like,” apparently including, but not limited to, the plaintiff. (Lopez Dep. 36.) Lopez, however, did

not indicate that her supervisor only disliked Hispanic people; nor did she offer any evidence that

her supervisor’s allegedly unfavorable treatment of her had anything to do with her ethnicity. In

fact, the plaintiff testified that her supervisor was angry at her because everybody else in the office

was nice and respectful toward Lopez and “went to [Lopez] and not to [the supervisor].” (Id. at

10 This is the plaintiff’s term, not the court’s.

55.) In addition, her supervisor did not like her because of her political and religious beliefs. (Id.

at 55–56.) To construe these “ouch” instances as ethnically/racially motivated would require, not

merely inferences, but rank speculation.

As set forth above, direct evidence is evidence from which a factfinder is not required to

“draw any inferences in order to conclude that the challenged employment action was motivated

at least in part by prejudice against members of the protected group.” Johnson, 319 F.3d at 865.

The plaintiff has proffered no such evidence in this case.

c) Indirect Evidence

Lacking direct evidence of unlawful discrimination, the plaintiff may attempt to prove her

Title VII claim using indirect evidence. The County argues that the plaintiff cannot establish a

prima facie case of discrimination and that, even if she could, she cannot show that the County’s

legitimate, nondiscriminatory reason for the termination was pretextual.

Prima Facie Case

Typically, to make out such a prima facie case of race discrimination, the plaintiff must

show that she (1) is a member of a protected class; (2) she was qualified for her job; (3) she suffered

an adverse employment decision; and (4) she was either replaced by a person outside the protected

class or treated differently than similarly situated non-protected employees. Blount v. Stanley

Eng’g Fastening, 55 F.4th 504, 510 (6th Cir. 2022) (citation omitted).11

There is no evidence in the record regarding who replaced the plaintiff. The plaintiff asserts

instead that similarly situated, non-protected employees were treated more favorably than she was.

The County argues that the plaintiff’s proposed comparators are not similarly situated to her in all

11 It is unclear to what extent the first element of the prima facie case or, indeed, any

reference to “protected class,” remains relevant after the Supreme Court’s decision in Ames.

relevant respects. The County also asserts that Lopez was not qualified for her job at the time she

was terminated, as it is undisputed that she was not actually able to work as of the date of her

termination.

The plaintiff identifies four employees who, she claims, were “out more than six months”

and a fifth who was on “extended leave” due to “knee issues.” (Doc. No. 42 at 21–22 (citing Lopez

Dep. 212–14).) Lopez claims that she knew how long these individuals were on leave because

“process[ing] their paperwork [w]as part of her job duties.” (Id. at 22 (citing Lopez Dep. 214–15).)

She identifies these employees as Danny Wise, Danny Lampland, Tommy King, Robert Harrison,

and Jennifer Stanley.12 (Id. at 21–22.)

Regarding Danny Wise, the plaintiff testified that he was off “a lot, in and out, in and out

of surgery,” but she did not know if his total time off exceeded 480 hours because she “didn’t keep

track of the hours.” (Lopez Dep. 212–13.) Regarding Danny Lampland, the plaintiff claims that

she was “pretty sure” he was out more than 480 hours because she was “pretty sure” he was out

for more than six months and “way longer” than she was.” (Id. at 213.)

Tommy King, she claims, was “back and forth for therapy for the leg” and that she

“believed” his leave exceeded 480 hours because “he said he had a lot of hours.” (Id.) Robert

Harrison was also out for “[a] lot of pain on the knees,” but Lopez did not indicate for how long,

and she did not know whether his or any of the other employees’ leave was related to workers’

compensation. (Id. at 213–14.) Jennifer Stanley was out a “long time” when her father passed

away, but Lopez did not know whether it was for more than six months. (Id. at 214.)

12 The County identifies these employees by initials only.

The plaintiff could not say whether any individual was out for a longer period of leave than

she was after Clair Cochran became HR Director because she “didn’t even know” when Cochran

moved into that position. (Id. at 214.)

The court finds that the plaintiff’s vague and unsubstantiated recollection regarding the

length of leave time the purported comparator employees took off is not sufficient to create a

material factual dispute regarding the actual length of their leave. Accord Marsh v. E. Associated

Ests. Realty, 521 F. App’x 460, 468 (6th Cir. 2013) (“In the face of [the defendant’s concrete]

evidence, [the plaintiff’s] unfounded speculation, supported by no concrete proof, does not raise a

genuine dispute of material fact.”). Here, the County has offered concrete evidence “collected from

the County’s records, such records having been prepared at or near the time of the matters reflected

in them, by a person with a business duty to prepare them accurately, in the regular course of

County business” (Cochran Aff. ¶ 12) that:

• Danny Wise (identified as D.W.) was a truck driver who took medical leave for less than

six weeks, from May 17, 2022 to June 23, 2022 (id. ¶ 13);

• Danny Lampland (or D.L.) was a heavy equipment operator who took twelve weeks (480

hours) of FMLA leave from September 9, 2020 to December 1, 2020 and then extended,

non-FMLA leave from December 2 to December 9, 2020 (40 hours), after which he “left

his employment with the County on December 18, 2020 (id. ¶ 14);

• Tommy King (or T.K.), Operations Manager took a medical leave of absence made

available by the County during the COVID pandemic from August 17–31, 2020 but took

no other medical or personal leave of absence since the plaintiff began working for the

County in 2019 (id. ¶ 15);

• Robert Harrison (or R.H.), a heavy equipment operator, has not taken any FMLA leave or

special or extended leave of any kind since the plaintiff began working for the County (id.

¶ 16); and

• Jennifer Stanley, a Recycling Specialist, took intermittent leave to care for her sick father

between February 24, 2020 and March 31, 2020 (id. ¶ 17).

Cochran adds that “[a]ny time off that Plaintiff noted” for King or Harrison was “time off accrued

pursuant to Williamson County employee sick and vacation leave policies.” (Id. ¶¶ 15–16.)

Cochran also testified that she became HR Director for the County beginning in January

2023, following her predecessor’s retirement, and that, during her tenure, “employees have not

been approved for additional leave beyond six months of continuous leave unless there is a clear

indication of an imminent return to work.” (Id. ¶ 7.)

Under Sixth Circuit law, to establish that she was treated differently than similarly situated

employees, Lopez must show that she and her proposed comparators were similar in all relevant

respects. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 353 (6th Cir. 1998). In every

case, the court must make an “independent determination” of what factors are relevant, and that

determination depends on whether certain factors “are meaningful to the particular claim of

discrimination presented.” Rembert v. Swagelok Co., No. 22-3554, 2023 WL 3094546, at *7 (6th

Cir. Apr. 26, 2023) (quoting Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012),

abrogated on other grounds by Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)); see

also Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2006) (explaining the necessity of

independently determining factors relevant to this inquiry).

The most relevant factor here is the length of leave. Of the plaintiff’s comparators, only

one comes close to having taken the amount of leave the plaintiff took: Danny Lampland took the

full amount of FMLA leave available to him and then took another 40 hours of leave. However,

he also left his employment just over a week after the end of his extended leave. The record does

not reveal why he left his employment, but it is clear that he did not request five months of extended

leave after his FMLA leave expired. None of the other proposed comparators took extended leave

at all, and the plaintiff’s speculation that they did and as to the length of that leave simply is not

sufficient to allow her to avoid summary judgment.

In other words, the plaintiff cannot show that she was treated differently from any similarly

situated employees and, as a result, cannot establish a prima facie case of discrimination. On this

basis alone, the County is entitled to summary judgment on the plaintiff’s Title VII claim. In

addition, for the same reasons discussed in connection with the plaintiff’s ADA claims, even if the

plaintiff could establish a prima facie case of ethnicity/race discrimination, she cannot show that

the County’s proffered reason for her termination was pretext for unlawful discrimination.

4. Breach of Contract / Promissory Estoppel

The plaintiff’s breach of contract and promissory estoppel claims are premised, first, upon

the May 24, 2023 letter she received from Patti Hawkins with the County’s Benefits Department.

As also set forth above, that letter stated in relevant part:

Your leave period under the Williamson County Government Temporary Disability

Program began on December 10, 2022. The current physician statement indicates

your return to work date will be June 12, 2023.

Please be advised that since you exhausted your FMLA leave on March 26, 2023

and your Temporary Disability Program [wil]l end on June 10, 2023, you will be

on uncompensated leave. For this reason you will be offered continuation of

benefits through COBRA as of June 11, 2023.

(Doc. No. 33-5 at 27.) In addition, the plaintiff claims that Mac Nolen told her during a department

Christmas party on December 10, 2022 that her “job was safe and would be held for [her] while

[she] recovered from [her] surgery on December 10, 2022.” (Lopez Aff. ¶ 2.) Nolen allegedly

repeated to the plaintiff shortly after another medical procedure in early March 2023 that her “job

was safe and would be held for [her] while [she] recovered.” (Id. ¶ 4.)

According to Lopez, when she received the May 24 letter, she already believed, based on

Nolen’s statements, that Nolen “was holding [her] job for [her] by providing uncompensated leave

until [her] medical situation allowed [her] to return.” (Id. ¶ 6.) The plaintiff “relied on this letter,”

believing her job was “safe while [she] recovered.” (Id. ¶ 7.)

Lopez characterizes the May 24 letter as providing notice that she was “entering into

unpaid leave status after June 10, 2023” and as “acknowledg[ing] that Ms. Lopez requested and

continue[d] to need medical leave, and . . . affirmatively stat[ing] that she will enter uncompensated

leave to recover from her medical issues.” (Doc. No. 27 at 3.) Lopez asserts that “[t]his is the type

of employer promise on which the employee can reasonably rely” and that the letter establishes an

implied in fact contract in providing uncompensated leave for medical recovery.” (Id.)

Alternatively, she argues that Nolen’s promises coupled with the May 24 letter give rise to a

promissory estoppel claim.13

a) Legal Standards

In Tennessee, the “employment-at-will doctrine” applies to any employment relationship

not “formalized by a contract for a definite term.” Chavez v. Broadway Elec. Serv. Corp., 245

S.W.3d 398, 403 (Tenn. Ct. App. 2007). Under the employment-at-will doctrine, employers and

employees are “generally permitted, with certain exceptions, to terminate the employment

relationship at any time for good cause, bad cause, or no cause.” Id. (quoting Crews v. Buckman

Labs. Int’l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). Accordingly, “in Tennessee, unless there is a

contract of employment for a definite term, a discharged employee may not recover against an

employer because there is no right to continued employment.” Cantrell v. Knox Cnty. Bd. of Educ.,

53 S.W.3d 659, 662 (Tenn. 2001) (citing Forrester v. Stockstill, 869 S.W.2d 328, 330 (Tenn.

1994)).

“The essential elements of any breach of contract claim include (1) the existence of an

enforceable contract, (2) nonperformance amounting to a breach of the contract, and (3) damages

caused by the breach of the contract.” Bynum v. Sampson, 605 S.W.3d 173, 180 (Tenn. Ct. App.

13 The Complaint does not include a promissory estoppel claim.

2020) (quoting ARC Lifemed, Inc. v. AMC-Tenn., Inc., 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005)).

In the employment context, it is presumed that an employee is employed on an “at will” basis, and

that presumption can only be overcome by specific language guaranteeing the employee a definite

term of employment. Koch v. Lightning Transp., LLC, No. 3:13-0225, 2015 WL 66971, at *6

(M.D. Tenn. Jan. 6, 2015) (Sharp, J.) (citations omitted).

Promissory estoppel, also known as “detrimental reliance,” is an equitable remedy the

application of which is limited to “exceptional cases.” Chavez v. Broadway Elec. Serv. Corp., 245

S.W.3d 398, 404 (Tenn. Ct. App. 2007). Under the doctrine of promissory estoppel, “‘a promise

which the promisor should reasonably expect to induce action or forbearance of a definite and

substantial character on the part of the promisee and which does induce such action or forbearance

is binding if injustice can be avoided only by enforcement of the promise.’” Id. at 404 (quoting

Alden v. Presley, 637 S.W.2d 862, 864 (Tenn. 1982)). To prove promissory estoppel, the plaintiff

must show “(1) that a promise was made; (2) that the promise was unambiguous and not

unenforceably vague; and (3) that [she] reasonably relied upon the promise to [her] detriment.” Id.

(citing Rice v. NN, Inc. Ball & Roller Div., 210 S.W.3d 536, 544 (Tenn. Ct. App. 2006)). “The key

element in finding promissory estoppel is, of course, the promise.” Id. at 405 (quoting Amacher v.

Brown–Forman Corp., 826 S.W.2d 480, 482 (Tenn. Ct. App. 1991)).

b) Application

The plaintiff’s breach of contract claim fails, because she cannot establish the first

necessary element of the claim: the existence of an enforceable contract promising employment

for a definite term. Contrary to Lopez’s assertions, in fact, the May 24 letter did not promise

employment at all. It noted that Lopez, as of the date of the letter, was expected to return to work

on June 12, 2023, per her physician’s most recent statement. (Doc. No. 33-5 at 27.) It then advised

Lopez that her Temporary Disability Program was scheduled to end on June 10, 2023, meaning

only that there would be a gap between June 10 and her anticipated return to work on June 12 (or

June 13), during which the plaintiff would not receive any disability payments and, therefore,

would be on “uncompensated leave.” The letter also offered COBRA benefits beginning June 11,

presumably because the plaintiff’s employer-sponsored health insurance benefits would be ending.

This letter does not refer to or promise employment for any length of time, and particularly not for

a definite term. Accordingly, even if it could be construed as promising employment (in the form

of uncompensated leave) beginning on June 10, it did not promise employment for a definite term

and, therefore, cannot overcome the presumption that no contract of employment was created.

Likewise, Nolen’s purported promises that the plaintiff’s job was “safe” while she

recovered from surgery did not promise employment for a definite term. In the absence of a

contract for a definite term, the plaintiff remained at all times an at-will employee, and her

employment could be terminated at any time.

The plaintiff’s reliance on Vargo v. Lincoln Brass Works, Inc., 115 S.W.3d 487 (Tenn. Ct.

App. 2003), is misplaced. Vargo simply held that employee manuals can, under certain

circumstances, create enforceable contracts and that the particular promise that “[s]everance

payments will be paid” to eligible employees created an enforceable contract in that case. Vargo,

115 S.W.3d at 492. Based on Vargo, the plaintiff argues that the use of “will” in the May 24 letter

(“you will be on uncompensated leave”) created a contract. If, indeed, that sentence can be

construed as a “promise,” the employer did not breach it, because the plaintiff did, in fact, go on

uncompensated leave on June 10, until her termination on June 13. Because the letter did not

promise employment for a definite term, the plaintiff’s termination did not constitute breach of a

contract. Accord Sudberry v. Royal & Sun Alliance, 344 S.W.3d 904, 914 (Tenn. Ct. App. 2008)

(“Tennessee has long recognized that statements by an employer about the prospect of long-term

employment are not contractually binding, nor do same alter the at-will presumption.” (citations

omitted)).

In short, the defendant is entitled to summary judgment on the plaintiff’s breach of contract

claim. Likely anticipating that result, the plaintiff also argues that the May 24 letter, combined

with Nolen’s statements, gives rise to a promissory estoppel claim. This claim fails as well.

As set forth above, the “key element in finding promissory estoppel is . . . the promise.”

Chavez, 245 S.W.3d at 405. To be enforceable, the promise must be unambiguous. In this case,

Nolen’s alleged “promises” in December 2022 and March 2023 that the plaintiff’s job was “safe

and would be held for her while [she] recovered from surgery” (Lopez Aff. ¶¶ 2, 4) did not

constitute unqualified, unambiguous promises that the plaintiff’s job would be held open

indefinitely. As the County points out, when Nolen allegedly made the first such statement in

December, the plaintiff anticipated returning to work within a couple of months. In March, when

he allegedly repeated the “promise,” the plaintiff had an April 1 return-to-work date. In any event,

because the plaintiff cannot establish a definite, unambiguous promise that is not unenforceably

vague, her promissory estoppel claim based on Nolen’s statements fails. Accord Atwood v. JCF

Residences Mgmt. Co., No. 1:20-cv-00056, 2022 WL 185187, at *9 (M.D. Tenn. Jan. 19, 2022)

(Campbell, J.) (finding that a “discharged employee generally cannot recover from an employer

for breach of contract or promissory estoppel based on termination of employment because there

is no right to continued employment”); Koch, 2015 WL 66971, at * 7, *9 (dismissing claims for

breach of contract and promissory estoppel because, under the at-will-employment doctrine,

defendants were entitled to terminate, decline to rehire, or not allow plaintiff to return to work

following maternity leave despite their promise to the contrary).

35

Likewise, the May 24 letter does not contain an unambiguous promise. As discussed above,

the obvious purpose of the letter was to inform the plaintiff of the date her disability payments

would terminate and to offer her COBRA coverage. The letter refers to uncompensated leave

beginning June 10, 2023, but it did not promise that such leave would extend for any particular

period of time. Accordingly, because the plaintiff was an at-will employee, even if the letter could

be construed as a promise, it promised nothing other than that, as of June 11, 2023, the plaintiff

would be on uncompensated leave. The termination of her employment on June 13, 2023 did not

violate that purported “promise.” Thus, even if the court accepts as true the plaintiffs allegation

that she relied on the letter to her detriment, such purported reliance is immaterial, both because

the letter did not make any unambiguous promise of employment for a definite term and because,

in the absence of an unambiguous promise, such reliance was unreasonable.

The defendant is entitled to summary judgment on the issue of promissory estoppel.

I. THE PLAINTIFF’S MOTION

Because the defendant is entitled to summary judgment in its favor on the plaintiff's breach

of contract claim, the plaintiffs Motion for Partial Summary Judgment on the same issue will be

denied without discussion.

IV. CONCLUSION

For the reasons set forth herein, the defendant’s Motion for Summary Judgment (Doc. No.

29) will be granted in its entirety, and the plaintiff's Motion for Partial Summary Judgment (Doc.

No. 26) will be denied. An appropriate Order is filed herewith.

United States District Judge