William Tennial v. United Parcel Serv.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WILLIAM TENNIAL, ┐

Plaintiff-Appellant, │

│

│

v. > No. 15-6356

│

│

UNITED PARCEL SERVICE, INC.; JIM COCHRAN; │

MICHAEL SLABAUGH, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:13-cv-02277—John Thomas Fowlkes, Jr., District Judge.

Argued: September 27, 2016

Decided and Filed: October 24, 2016

Before: GILMAN, GIBBONS, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Luther Oneal Sutter, SUTTER & GILLHAM, P.L.L.C., Little Rock, Arkansas, for

Appellant. John E. B. Gerth, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville,

Tennessee, for Appellee. ON BRIEF: Luther Oneal Sutter, SUTTER & GILLHAM, P.L.L.C.,

Little Rock, Arkansas, Andrew C. Clarke, Memphis, Tennessee, for Appellant. John E. B.

Gerth, Aron Z. Karabel, WALLER LANSDEN DORTCH & DAVIS, LLP, Nashville,

Tennessee, for Appellee.

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OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. William Tennial is an African-American

employee of United Parcel Service, Inc. (UPS) who has served in various managerial roles over

1

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the course of more than 30 years with the company. After a number of service failures that

occurred during his time as Hub Manager of the Memphis Hub’s “Twilight Sort,” Tennial was

placed on a Management Performance Improvement Plan (MPIP) and eventually demoted to a

supervisor of the Oakhaven Hub, a position that he currently holds. Although he acknowledges

these service failures, Tennial points to a number of Caucasian managers who were allegedly

responsible for similar failures, yet did not suffer comparable adverse employment actions. He

therefore maintains that his placement on the MPIP and his subsequent demotion were in fact

motivated by race, age, and disability discrimination, as well as by retaliation for taking medical

leave.

Tennial brought suit in the United States District Court for the Western District of

Tennessee against UPS and his supervisors, Jim Cochran and Michael Slabaugh. UPS, Cochran,

and Slabaugh subsequently moved for summary judgment, which the district court granted on all

claims. For the reasons set forth below, we AFFIRM the judgment of the district court.

BACKGROUND

A. Factual background

In 2009, Tennial began working as the Business Manager of the Walnut Grove Packaging

Center. His supervisors noted performance deficiencies and serious service failures at that

facility over the next two years. Despite these service failures, Tennial contends that his

performance was on par with other Caucasian managers.

In May 2011, Tennial became the Hub Manager of the Twilight Sort, where he worked

under Hub Division Manager Richard Williams. Tennial’s performance and leadership

deficiencies persisted, and the Twilight Sort failed to meet performance goals under his

supervision. He claims, however, that the Twilight Sort was in disarray before he took over and

had failed to meet its performance goals for many years prior to his appointment.

In September 2011, the Twilight Sort suffered particularly severe service failures under

Tennial’s leadership, including an incident in which over 200 packages were not sorted in a

timely manner. Tennial and Williams were summoned to Nashville to meet with UPS

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 3

supervisors and Ken Harms, UPS District President, in order to discuss the 200 delayed packages

and other service failures at the Twilight Sort. Although Williams had previously supervised

managers who missed loads, he had never before been summoned to the District President’s

office to explain this type of service failure.

Tennial alleges that Harms told him during the meeting that, unless he voluntarily

stepped down as the Hub Manager, Harms would make it “extremely difficult for him to be

successful.” He refused to step down. Tennial now contends that Harms followed through on

his promise and created an extremely hostile work environment. As a result, Tennial requested

leave for stress, depression, and anxiety under the Family Medical Leave Act (FMLA) shortly

after this meeting. He was granted leave and thus missed UPS’s peak holiday season, which is

the company’s busiest. Tennial returned to his position as the Hub Manager of the Twilight Sort

in early 2012.

After Williams’s retirement later that same month, Cochran became the Hub Division

Manager for Memphis and Tennial’s direct supervisor. Cochran monitored and assessed

Tennial’s performance throughout March and April 2012. Numerous service failures were

observed by Cochran, which Tennial claims were partly due to inexperienced supervisors,

turnover, and a lack of capability at the Twilight Sort. In April 2012, Cochran and District Hub

Operations Manager Slabaugh nonetheless decided to put Tennial on a MPIP. At a meeting

discussing his MPIP, Tennial took responsibility for his service failures and committed to

improving his performance. He also acknowledged that a failure to meet the goals stated in the

MPIP could result in an adverse employment action, including a demotion.

Tennial thereafter failed to meet the goals of his MPIP. He was demoted in July 2012

from the Hub Manager at the Twilight Sort to Full Time Hub Supervisor at the Oakhaven Hub.

Cochran testified that this demotion was performance-based, but Tennial maintains that the

MPIP goals were impossible to attain because of the inexperienced supervisors at the Twilight

Sort, a lack of support, unpredictable volume, and the desire of upper management to see him

fail. Tennial further asserts that previous and subsequent Caucasian Hub Managers of the

Twilight Sort also failed to meet performance goals, yet were not demoted like he was.

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 4

B. Procedural background

In Tennial’s complaint, he first alleged that the defendants discriminated against

him based on his race, in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and the Tennessee Human Rights Act (THRA), Tenn. Code

Ann. § 4-21-101 et seq. He next brought claims under both the THRA and the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 623, for age discrimination, as well as

claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12101-12213, for

disability discrimination. Finally, Tennial alleged that the defendants interfered with his medical

leave and retaliated against him, in violation of the FMLA, 29 U.S.C. § 2615.

UPS, Cochran, and Slabaugh moved for summary judgment on all counts in November

2014. Tennial opposed their motion and, in June 2015, filed a motion under Rule 56(d) of the

Federal Rules of Civil Procedure asking the court to defer the consideration of summary

judgment in order for him to supplement his response with additional discovery. According to

the motion, Tennial wished to depose three managerial-level UPS employees regarding incidents

that had happened after the filing of the defendants’ motion for summary judgment. The

defendants filed a response opposing Tennial’s motion, claiming in part that the information that

he sought to discover was irrelevant to his claims.

In November 2015, the district court granted the defendants’ motion for summary

judgment and denied Tennial’s Rule 56(d) Motion. Following this decision, the defendants filed

a Bill of Costs with the Clerk of Court, seeking to recover permissible costs due the prevailing

party under Rule 54 (d)(1) of the Federal Rules of Civil Procedure. Tennial objected, arguing

that the court should use its discretion and refuse to tax costs against him because the costs

sought were unreasonable and unjustified. In February 2016, despite Tennial’s objections, the

Clerk awarded costs to the defendants in the amount of $8,921.30. This timely appeal followed.

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 5

ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Watson v. Cartee,

817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is proper when no genuine dispute of

material fact exists and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In making this assessment, we must view all evidence in the

light most favorable to the nonmoving party. McKay v. Federspiel, 823 F.3d 862, 866 (6th Cir.

2016).

The denial of a Rule 56(d) request for additional discovery, on the other hand, is

reviewed using the abuse-of-discretion standard. Ball v. Union Carbide Corp., 385 F.3d 713,

720 (6th Cir. 2004). “An abuse of discretion occurs when the reviewing court is left with the

definite and firm conviction that the trial court committed a clear error of judgment.” F.T.C. v.

E.M.A. Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014) (internal quotation marks omitted).

This means that we will not reverse the district court’s ruling on Tennial’s motion unless we

conclude that the ruling was arbitrary, unjustifiable, or clearly unreasonable. See id. The abuse-

of-discretion standard is also applicable to our review of the district court’s decision concerning

the taxation of costs. Soberay Mach. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir.

1999).

B. Racial-discrimination claims

Although Tennial’s claims of racial discrimination arise under different statutes, they can

all be considered by utilizing the same analytical framework. See Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000) (“The elements of [a] prima facie case as well

as the allocations of the burden of proof are the same for employment claims stemming from

Title VII and § 1981.”); Bailey v. USF Holland, Inc., 526 F.3d 880, 885 n.1 (6th Cir. 2008)

(“The analysis of claims brought pursuant to the THRA is identical to the analysis used for Title

VII claims.”). Under this framework, a plaintiff can prove racial discrimination by proffering

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 6

either direct evidence or circumstantial evidence. Johnson v. Kroger Co., 319 F.3d 858, 864–65

(6th Cir. 2003). Tennial argues that he can establish a prima facie case for racial discrimination

under both methods, so we will address each of them in turn.

1. Direct evidence

Direct evidence consists of facts that, “if believed, require[] the conclusion that unlawful

discrimination was at least a motivating factor in the employer’s actions.” Id at 865. In other

words, when direct evidence is provided, no inferences are needed in order to conclude that

racial discrimination is afoot. Id.

Tennial points to the following as direct evidence of racial discrimination: (1) Cochran’s

use of the word “n*****” in referencing another, nonparty UPS employee, and (2) a statement

made by District President Harms during a meeting with Tennial, in which Harms used the word

“boys” in reference to Tennial’s black coworkers. Despite the derogatory nature of these words,

the alleged comments do not constitute direct evidence of discrimination against Tennial.

The first comment is based on the bare-bones affidavit of a coworker, consisting of one

sentence claiming that Cochran called the coworker a “n*****” while both were at work.

Tennial was not present during this alleged incident. He next points out that the use of the word

“boy” can be discriminatory, based on factors such as context, tone, and local custom. See Ash v.

Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam). But neither of these alleged

comments was directed at or made in reference to Tennial, nor were they made in the context of

his demotion. See id.; see also Worthy v. Michigan Bell Tel. Co., 472 F. App’x 342, 347 (6th

Cir. 2012) (rejecting as direct evidence of discrimination the use of the word “boy” when it was

too remote in time to the adverse employment action).

A finding of racial discrimination based on these comments, moreover, would require us

to make inferences. First, we would have to infer that Cochran’s alleged use of the n-word with

respect to an unrelated employee meant that his decision to demote Tennial was due to a similar

racial animus. We would also be required to infer that Harm’s reference to Tennial’s coworkers

as “boys” meant that his animus trickled down and influenced the individual decisions of

Cochran and Slabaugh to initiate Tennial’s MPIP and demotion process.

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In sum, neither of these stray comments constitute direct evidence of racial

discrimination against Tennial. His “direct-evidence” theory of liability therefore fails.

2. Circumstantial evidence

Alternatively, Tennial argues that there is enough circumstantial evidence to establish

that UPS, Cochran, and Slabaugh discriminated against him based on race. We apply the

burden-shifting approach from the McDonnell Douglas line of cases to analyze these claims

under Title VII. Under this approach, Tennial must first establish the elements of a prima facie

case. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). He has to show that

he was (1) a member of a protected class, (2) subject to an adverse employment action,

(3) qualified for the position, and (4) replaced by a person outside the protected class or treated

differently than similarly situated nonminority employees. See Mitchell v. Toledo Hosp.,

964 F.2d 577, 582 (6th Cir. 1992). If Tennial can establish these elements, then the burden shifts

to UPS to articulate a legitimate, nondiscriminatory reason for his demotion. McDonnell

Douglas, 411 U.S. at 802. Assuming that UPS has done this, Tennial can still survive the

company’s motion for summary judgment if he can “identify evidence from which a reasonable

jury could conclude that the proffered reason is actually a pretext for unlawful discrimination.”

See Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 812 (6th Cir. 2011) (quoting Macy v.

Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007)).

Tennial met the McDonnell Douglas requirements to establish a prima facie case. As an

African American, he is a member of a protected class and his demotion constitutes an adverse

employment action. Tennial was qualified for the job of Hub Manager because he had over

30 years of experience at UPS and was transferred to that position by the company. See Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 662–63, 666 (6th Cir. 2000) (holding that

consideration of the employer’s nondiscriminatory reason for the adverse employment action at

the prima facie stage of the case improperly conflates the distinct stages of the McDonnell

Douglas inquiry). Finally, Tennial meets the last prong of the McDonnell Douglas prima facie

test because he was replaced as Hub Manager by a Caucasian.

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The burden therefore shifted to UPS to come forth with a legitimate, nondiscriminatory

reason for his demotion. See McDonnell Douglas, 411 U.S. at 802. UPS pointed to Tennial’s

failure to correct on-going performance deficiencies and his failure to meet reasonable

expectations as set forth in the MPIP. This performance-based reason is supported by numerous

performance failures at the Twilight Hub both before and after Tennial’s MPIP process began,

which he has acknowledged.

Because UPS put forth a legitimate, nondiscriminatory explanation for Tennial’s

demotion, the burden shifted back to Tennial to “identify evidence from which a reasonable jury

could conclude that the proffered reason is actually a pretext for unlawful discrimination” in

order to survive the defendants’ motion for summary judgment. See Provenzano, 663 F.3d at

812. To show pretext, Tennial points to other Caucasian UPS managers who allegedly had

comparable service failures, yet were not demoted. Although a plaintiff can prove pretext in

several ways, evidence “[e]specially relevant to such a showing” is proof that an employer

treated similarly situated Caucasian employees differently when they engaged in acts of

comparable seriousness. McDonnell Douglas, 411 U.S. at 804. Tennial must therefore show

that similarly situated Caucasian “comparators” were responsible for similar performance

deficiencies, yet were not placed on a MPIP or demoted.

The nonprotected employee need not be identical in every way in order to be a proper

comparator. Instead, the plaintiff must show that the comparator is similarly situated in all

relevant respects and has engaged in acts of comparable seriousness. Bobo v. United Parcel

Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). There is no specific list of factors that we must

consider in making this determination. Instead, we must make an “independent determination as

to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-

protected employee” based on the facts of the case. Ercegovich v. Goodyear Tire & Rubber Co.,

154 F.3d 344, 352 (6th Cir. 1998). Tennial put forth four potential comparators: James Fly, Jay

Briggs, Bill Shadle, and Ann Hatley. He maintains that all of these Caucasian employees were

responsible for performance failures, yet none were disciplined. For the reasons discussed

below, however, we agree with the district court’s conclusion that no reasonable jury could find

any of these candidates to be adequate comparators.

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Tennial first argues that Fly, who permanently replaced him as Hub Manager of the

Twilight Sort in February 2013, is a proper comparator. Although Fly failed to meet

performance goals during his first year as Hub Manager and has received reviews of

“improvement needed,” he has not been placed on a MPIP or demoted for failing to meet these

goals. Differences in experience and disciplinary history, however, establish that Tennial and

Fly are not similarly situated. See Campbell v. Hamilton County, 23 F. App’x 318, 325 (6th Cir.

2001) (holding that differences in job title and responsibilities, experience, and disciplinary

history may establish that two employees are not similarly situated). Fly had less than two years

of management experience when he became Hub Manager and had worked in the Memphis Hub

for only five years. Tennial, on the other hand, has over 10 years of managerial experience and

over 20 years of experience at the Memphis Hub. Because of these differences, no reasonable

jury could find that Fly and Tennial are similarly situated in all relevant respects.

Tennial next contends that Briggs is a proper comparator. Briggs was Hub Manager of

the Twilight Sort before Tennial served in that position. Tennial argues that Briggs was a poor

performer, but was not placed on a MPIP or demoted. He bases these assertions largely on an

email from Slaubaugh, written after Slaubaugh observed the Twilight Sort under Briggs’s

management for only one day. In the email, Slaubaugh comments that the Twilight Sort had “the

worst package handling” he had ever seen.

Tennial further claims that Williams, his former supervisor, transferred him to the

“troubled” Twilight Sort so that he could fix the problems that Briggs created there. The record,

however, reveals that this is a mischaracterization. Williams testified that Briggs was a strong

performer and was transferred from the Twilight Sort to the Oakhaven Hub because Oakhaven

was the biggest and hardest sort. In contrast, Williams said that Tennial was performing below

average as Hub Manager from the outset and that Williams himself had considered putting

Tennial on a MPIP.

True enough, the record reveals that Briggs had previously been asked to prepare

corrective-action plans to address his performance deficiencies. But these write-ups are similar

to the ones that Tennial completed with respect to his own performance deficiencies, which cuts

against the argument that Tennial and Briggs were treated differently. UPS records also indicate

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 10

that Briggs improved and show that, during 2011 and 2012, Briggs was meeting his performance

goals. Briggs, therefore, did not have the long-standing performance issues that Tennial did. So

Briggs was not similarly situated to Tennial, nor did he have a record of comparable acts of

serious performance deficiencies. No reasonable jury, therefore, could find Briggs to be a proper

comparator.

Shadle, who replaced Tennial as Hub Manager of the Twilight Sort during Tennial’s

FMLA leave and briefly after his demotion, is offered as still another potential comparator.

Tennial claims that, as his interim replacement, Shadle failed to meet the performance goals of a

Hub Manager, but was not demoted. Despite Tennial’s assertions, there is no record evidence to

support this argument. Shadle, moreover, was a training manager, acting only as a temporary

replacement for Tennial and not as a permanent Hub Manager. No reasonable jury could find

Shadle to be similarly situated to Tennial in all relevant respects or that he engaged in acts of

comparable seriousness.

Finally, Tennial argues that Hatley is a proper comparator. Hatley is the Hub Manager at

the Oakhaven Hub and served in that capacity during 2011 and 2012 when Tennial was put on a

MPIP and demoted. Tennial asserts that Hatley failed to meet her performance goals, yet did not

suffer consequences similar to Tennial. Hatley’s performance record, however, indicates that

she did not engage in performance failures of comparable seriousness to Tennial’s. In 2010 and

2011, the record shows that Hatley actually exceeded her performance goals. Although Hatley

fell 39% short of one of her performance goals in 2012, Cochran did not put her on a MPIP plan

because she had exceeded her goals in the prior two years. Hatley’s performance errors, despite

this singular failure in 2012, were neither as long-standing nor as serious as Tennial’s. Because

of these differences, no reasonable jury could find Hatley and Tennial to be similarly situated.

In sum, Tennial has failed to show that Fly, Briggs, Shadle, or Hatley are proper

comparators. There is, moreover, no other evidence of pretext in the record. Because Tennial

has failed to establish a genuine dispute of material fact with respect to pretext, his racial-

discrimination claims were properly found to not survive the defendants’ motion for summary

judgment.

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C. ADEA claims

Tennial also asserts that, as an employee over the age of 50, he has been subjected to

discrimination based on his age. He brings his claims under the ADEA, which prohibits age

discrimination in employment decisions. 29 U.S.C. § 623. Much like the cases under Title VII,

a plaintiff who alleges employment discrimination under the ADEA may bring a claim using

either direct or circumstantial evidence. See Geiger v. Tower Auto., 579 F.3d 614, 620 (6th Cir.

2009). Because Tennial presented no evidence of discriminatory age-related statements made by

any decisionmakers, his claim must be analyzed under the approach used for circumstantial

evidence.

That approach embraces the same McDonnell Douglas burden-shifting regime discussed

above. Id at 622. Tennial was therefore required to show that (1) he is a member of a protected

class, (2) he was demoted, (3) he was qualified for the position held, and (4) he was replaced by

someone outside of the protected class. Id. Although Tennial was able to establish a prima facie

case of age discrimination for essentially the same reasons as stated in Part II.B. above, the sole

fact that he was replaced by a younger person is insufficient as a matter of law to raise a genuine

dispute of material fact as to whether UPS’s nondiscriminatory reason for demoting him was

pretextual. See Chappell v. GTE Prod. Corp., 803 F.2d 261, 267 (6th Cir. 1986) (holding that

“[t]he isolated fact that a younger person eventually replaces an older employee is not enough to

permit a rebuttal inference that the replacement was motivated by age discrimination”).

The district court therefore did not err in granting summary judgment against Tennial on his

ADEA claims.

D. ADA claim

We now turn to Tennial’s assertion that his rights were violated under the ADA. As the

district court noted, the record is unclear as to the specific nature of Tennial’s disability. For the

purposes of this analysis, however, we will assume that his work-related stress qualifies as a

disability. Tennial alleges that he was subjected to discrimination because of this disability and

because he was denied a reasonable accommodation.

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He first asserts that his placement on a MPIP and the subsequent demotion were the

result of disability discrimination. To establish a prima facie case of disability discrimination,

“a plaintiff must show that 1) he or she is disabled; 2) otherwise qualified for the position, with

or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the

employer knew or had reason to know of the plaintiff’s disability; and 5) the position remained

open while the employer sought other applicants or the disabled individual was replaced.”

Whitfield v. Tennessee, 639 F.3d 253, 258–59 (6th Cir. 2011) (internal quotation marks omitted).

Furthermore, the disability must be a “but for” cause of the adverse employment action. Lewis v.

Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012) (en banc).

Even assuming that Tennial was able to meet elements one, two, three, and five of a

prima facie case, he failed to present proof that any of the defendants were aware of his

disability. An employee cannot be subject to an adverse employment action based on his

disability unless the individual decisionmaker responsible for his demotion has knowledge of

that disability. Nilles v. Givaudan Flavors Corp., 521 F. App’x 364, 368 (6th Cir. 2013).

Although Tennial’s supervisors were aware that he took leave, there is no indication anywhere in

the record that his supervisors knew that this leave was for work-related stress.

A prima facie case is not made out if the decisionmaker is unaware of the specifics of an

employee’s disabilities or restrictions, even if the decisionmaker has a general knowledge that a

disability exists. Arthur v. Am. Showa, Inc., 625 F. App’x 704, 708 (6th Cir. 2015). Despite

Tennial’s assertions, the record evidence shows that Tennial’s supervisors, including the primary

decisionmaker Cochran, were unaware of Tennial’s stress-related disability. His claim for

disability discrimination therefore fails.

Tennial’s related claim that he was denied a reasonable accommodation is similarly

without merit. He relies on a recorded conversation from a meeting with Cochran held after he

was put on the MPIP. The key part of this recording is as follows:

MR. TENNIAL: All right. I just wanted to talked [sic] to you. Eventually I want

to sit down because it seems like I’m having a hard time comprehending exactly

what your expectations are. So if you don’t mind just -- of course, my ADA deal,

I just wanted to ask you I had this –

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MR. COCHRAN: Hold on. I don’t want to be recorded. I never had anybody

record me before. I mean, I will be glad to put it in writing exactly what, you

know, what is expected. Guarantee your process, showing leadership.

MR. TENNIAL: You want me to turn it off?

MR. COCHRAN: Please do.

Tennial claims that the above interaction constituted a request for and a denial of a

reasonable accommodation under the ADA. He contends that he needed a recording device

because he was having trouble understanding what Cochran wanted. The recorder would have

allowed Tennial to refer back to the conversation. Tennial admits that he did not further inform

anyone at UPS of his request for an accommodation under the ADA, but insists that, during this

interaction, he told Cochran that he was stressed out and needed a reasonable accommodation

under the ADA.

To make out a claim for the denial of a reasonable accommodation, an employee must

first show that he proposed an accommodation and that the desired accommodation is objectively

reasonable. Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1108 (6th Cir. 2008).

Employees must not only “request to be accommodated, but [must] also provide their employers

with a sufficient basis to understand that the request is being made because of their disability.”

Deister v. Auto Club Ins. Ass’n, 647 F. App’x 652, 658 (6th Cir. 2016).

Although there is no bright-line test for determining when an employee like Tennial has

made such a request, “at a minimum he must ‘make it clear from the context that [the request] is

being made in order to conform with existing medical restrictions.’” Id. (quoting Leeds v. Potter,

249 F. App’x. 442, 449 (6th Cir. 2007)). The district court correctly held that a fleeting

reference to “my ADA deal” was insufficient to put Cochran on notice of an accommodation

request. Tennial did not explain that the recorder would help accommodate his disability, and

the record evidence indicates that Cochran did not understand his request as such.

And even if Cochran had understood Tennial’s request as one for an ADA

accommodation, Tennial’s claim fails for a second reason. If denied a requested

accommodation, an employee cannot force his employer to provide that specific accommodation

if the employer offers an alternative reasonable accommodation. Hedrick v. W. Reserve Care

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Sys., 355 F.3d 444, 457 (6th Cir. 2004). In the present case, Cochran offered to memorialize the

conversation for Tennial in writing. Tennial fails to explain why this would not constitute a

reasonable accommodation. Because Tennial has not met his evidentiary burden in showing that

he made a request for an accommodation under the ADA, and because Cochran offered an

alternative reasonable accommodation, Tennial’s claims under the ADA are without merit.

E. FMLA claims

Tennial next points to alleged errors in the district court’s grant of summary judgment to

the defendants on his claims under the FMLA. The FMLA entitles qualifying employees up to

12 work weeks of leave under specified circumstances, including if they are suffering from a

serious health condition. 29 U.S.C. § 2612(a)(1)(D). This court has recognized two theories of

recovery under the FMLA: interference and retaliation. Seeger v. Cincinnati Bell Tel. Co., LLC,

681 F.3d 274, 282 (6th Cir. 2012). Although a plaintiff can proceed under both theories, the

proof needed for each claim differs. Id. A plaintiff proceeding under a retaliation theory must

show discriminatory or retaliatory intent, whereas a plaintiff alleging interference need not prove

any unlawful intent on the part of his employer. Id. Tennial asserts that his FMLA rights were

violated under both theories. We will therefore address each of them in turn.

Tennial first claims that his FMLA rights were interfered with when he was held

responsible for the performance deficiencies of his interim replacement after he returned from

leave. To establish a claim for interference under the FMLA, a plaintiff must demonstrate that

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

(3) the employee was entitled to leave under the FMLA, (4) the employee gave the employer

notice of his intention to take leave, and (5) the employer denied the employee FMLA benefits to

which he was entitled. Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005).

Analysis of the first four factors is unnecessary because Tennial has not pointed to any

evidence in the record showing that he was denied FMLA benefits. A benefit is denied if an

“employer interferes with the FMLA-created right to medical leave or to reinstatement following

the leave.” Arban v. W. Pub. Corp., 345 F.3d 390, 401 (6th Cir. 2003). Tennial was never

denied leave. He was in fact granted it twice, once in 2011 when he was the Twilight Sort’s Hub

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 15

Manager and again in 2012 when he served as a supervisor of the Oakhaven Hub. Nor was he

denied reinstatement to those positions when he returned from leave.

Tennial also brings a retaliation claim under the FMLA. He asserts that he was retaliated

against for exercising his FMLA rights because he was placed on a MPIP after he returned from

leave in 2011. Tennial alleges that his placement on a MPIP and his subsequent demotion were

not motivated by his poor performance, but because he took leave during UPS’s peak holiday

season. To establish a prima facie case of FMLA retaliation, a plaintiff must show that (1) he

engaged in an activity protected by the Act, (2) this exercise of his protected rights was known to

the defendant, (3) the defendant thereafter took an employment action adverse to the plaintiff,

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

action. Id at 404.

In order to establish such a causal connection, a plaintiff must show some type of

retaliatory intent. Tennial therefore had to establish that the true motivation for his placement on

a MPIP and his subsequent demotion were not for the reasons given, but were instead based on

the fact that he took a medical leave of absence. Id. at 404. To prove this causal connection,

Tennial points to two sources of evidence: (1) the timing of his demotion, and (2) his

supervisors’ hostility towards employees that take leave during the peak holiday season. But

neither of these theories are supported by sufficient evidence from which a reasonable jury could

find in his favor.

Tennial requested and was granted leave under the FMLA shortly after his September

2011 meeting with Harms, and he returned to work in early 2012. Following his placement on a

MPIP and his failure to meet those performance goals, Tennial was demoted to supervisor status

in July 2012. Despite this nearly seven-month period of time between his return to work and his

demotion, Tennial urges us to infer that his demotion was actually based on the exercise of his

FMLA rights. The district court correctly noted, however, that the gap between Tennial’s return

and his demotion is too long to support such an inference. Temporal proximity of more than six

months, standing alone, has not been found to support an inference of retaliatory discrimination

absent other compelling evidence. Nguyen v. City of Cleveland, 229 F.3d 559, 566–67 (6th Cir.

2000) (noting that “cases that have permitted a prima facie case to be made based on the

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proximity of time have all been short periods of time, usually less than six months”) (internal

quotation marks omitted).

Tennial contends, however, that there is additional evidence to support an inference of

retaliatory discrimination. He points to the testimony of James Wherry, a former UPS division

manager, who said that UPS has a policy of disfavoring employees that take leave during the

peak holiday season. Wherry based this assertion on comments made to him by Wilson, Director

of Human Resources at UPS, regarding an unrelated, nonparty employee. The weakness of this

evidence is underscored by the uncontested fact that Cochran, not Wilson, made the decision to

place Tennial on a MPIP and recommended that Tennial be demoted. We therefore agree with

the district court that this evidence does not raise a genuine dispute as to whether a causal

connection exists between Tennial’s leave and his demotion. He was therefore unable to

establish a prima facie case for retaliation.

In sum, the record does not support Tennial’s FMLA claims based on either interference

or retaliation. The district court thus did not err in granting summary judgment to the defendants

on these FMLA claims.

F. Tennial’s motion to stay the court’s consideration of summary judgment

Tennial also appeals the district court’s denial of his motion under Rule 56(d) of the

Federal Rules of Civil Procedure to stay consideration of the defendants’ summary-judgment

motion. Before summary judgment was entered, Tennial became aware of other instances of

UPS’s allegedly preferential treatment of managers outside the protected class. Specifically,

Tennial sought to depose three Caucasian managers who purportedly committed serious integrity

violations but did not suffer similar adverse employment actions. Information discovered in

these depositions, he argues, would likely be relevant under Bobo v. United Parcel Service, Inc.,

665 F.3d 741, 751 (6th Cir. 2012) (defining a comparator as an employee who is similarly

situated in all relevant respects to the plaintiff and has engaged in acts of comparable

seriousness). Although Tennial failed to elaborate, he seems to be arguing that these employees

could potentially serve as comparators under Bobo. Because the conduct in question happened

soon after the close of discovery and is potentially relevant to his claims, Tennial argues that the

No. 15-6356 Tennial v. United Parcel Serv. et al. Page 17

district court should have granted him leave to supplement his response before ruling on the

defendants’ summary-judgment motion.

The district court denied Tennial’s motion, holding that the potential new information

was irrelevant and thus would not alter the outcome of the decision. This ruling was not clearly

erroneous because key differences between this case and Bobo support the district court’s

conclusion. As Bobo makes clear, Tennial must show that the proposed comparators’ conduct

was similar in kind and in severity to his own. See id. They must “have engaged in the same

conduct without such differentiating or mitigating circumstances that would distinguish their

conduct or the employer’s treatment of them for it.” See Clayton v. Meijer, Inc., 281 F.3d 605,

611 (6th Cir. 2002).

Such similar conduct does not exist in the present case. Tennial’s demotion was the

result of his poor performance as a Hub Manager, whereas the three employees in question are

alleged to have engaged in “serious integrity violations.” Even if this misconduct occurred and

did not result in adverse employment actions for these employees, their alleged integrity

violations are materially different in kind from Tennial’s performance-based conduct. These

differentiating circumstances preclude them from being proper comparators. See Parks v. UPS

Supply Chain Sols., Inc., 607 F. App’x 508, 515–16 (6th Cir. 2015) (rejecting as comparators

employees who had different disciplinary issues than the plaintiff) (internal quotation marks

omitted). For these reasons, the district court’s decision to deny Tennial’s Rule 56(d) motion

was not an abuse of discretion.

G. Order taxing costs

Tennial’s final argument is that the district court erred in taxing costs of $8,921.30

against him under Rule 54(d) of the Federal Rule of Civil Procedure. He mentions this issue in

an extremely cursory manner, however, devoting only two sentences in his entire brief to the

contention. Tennial simply argues that the district court’s ruling should be reversed because “the

case was close and difficult” and because of the “relative economic disparity between the

parties.” There are no citations provided to the record or to any caselaw, and the issue is not

mentioned or developed elsewhere in the brief.

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This issue has therefore been waived under this circuit’s caselaw, which states that

“[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived.” See Barany-Snyder v. Weiner, 539 F.3d 327, 331 (6th Cir.

2008) (citation and internal quotation marks omitted). As a result, we need not consider this

issue on appeal.

CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgement of the district court.