United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
N. STIVERS, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on Plaintiff's Objection to
Magistrate Judge's Order (DN 97), Plaintiff's Motions
for Partial Summary Judgment (DN 110, 111, 112, 113, 117,
118), Defendants' Motions for Summary Judgment (DN 115,
116), Defendants' Motions for Leave to Exceed Page
Limitations (DN 114, 124, 138), and Plaintiff's Motion
for Leave to Exceed Page Limitations (DN 126). The motions
are ripe for adjudication. For the reasons outlined below,
Defendants' Motions for Summary Judgment (DN 115, 116)
are GRANTED IN PART and DENIED IN
PART, the parties' motions to exceed page
limitations are GRANTED, Plaintiff's
objection is OVERRULED AS MOOT, and
Plaintiffs' remaining motions are DENIED AS
STATEMENT OF FACTS AND CLAIMS
action involves several employment law claims brought by
Adrianne Popeck (“Popeck”) against her former
employer, The Rawlings Company LLC (“Rawlings
Co.”), and one of its human resources generalists,
Debra Ford (“Ford”) (collectively
“Defendants”). Popeck worked for Rawlings Co. in
various roles-including auditor and audit team manager
(“ATM”)-from March 30, 2009, until December 8,
2015. (Second Am. Compl. ¶ 5, DN 48; Popeck Aff. ¶
89, DN 127-4; Barrens Dep. 12:12-16, Mar. 22, 2017, DN 109-1;
Popeck Dep. 71:14-16). As an ATM, Popeck audited claims and
supervised the performance of ten to fifteen auditors.
(Popeck Dep. 105:11-106:3). In her supervisory capacity,
Popeck utilized Rawlings Co.'s “hands-on”
management policy, regularly interacting with her team
members and engaging them in one-on-one discussions about
their performance. (Young Dep. 225:17-226:3, Nov. 3, 2016, DN
109-10; Popeck Dep. 105:11-106:3). Throughout her employment,
Rawlings Co. paid Popeck a base salary plus commissions.
(Popeck Dep. 80:12-13).
her stint as an ATM, Popeck was diagnosed with irritable
bowel syndrome (“IBS”), a digestive disease that
caused her to experience severe stomach cramping and sudden
diarrhea. (Popeck Aff. ¶¶ 21, 25). According to
Popeck, her “IBS episodes tended to strike . . . in the
early mornings and late afternoons.” (Popeck Aff.
¶ 25). Sometimes she would experience IBS symptoms while
at work; on those occasions, she would occupy the nearest
bathroom stall, and-“between bouts of
diarrhea”-lay “on the floor of the stall with
[her] head on [a] sweatshirt, in the fetal position.”
(Popeck Aff. ¶ 26).
Co. first learned of Popeck's medical condition in late
November 2013 when she requested leave under the Family and
Medical Leave Act (“FMLA”). Upon her request, one
of Rawlings Co.'s human resources generalists, Terri
Parker (“Parker”), administered the company's
FMLA paperwork to Popeck, who submitted it to her doctor,
Shelia Rhoads, M.D. (“Dr. Rhoads”). In completing
the paperwork, Dr. Rhoads noted that Popeck's IBS may
interfere with her ability to work and recommended that she
work part-time. (2013 FMLA Paperwork, DN 116-14). Thus, in
December 2013, Rawlings Co. placed Popeck on intermittent
leave, allowing her to arrive to work late and to leave work
early as needed. (Popeck Aff. ¶ 5, DN 111-3 [hereinafter
Popeck Second Aff.]).
on intermittent FMLA leave, Popeck failed to meet the
expectations that Rawlings Co. sets for its
managers. Indeed, her team's continual
underperformance, tardiness, and taking of excessive breaks
eventually prompted Kelly Young (Young”)-Rawlings
Co.'s Director of Operations-to email her the following:
“[t]his [i.e., Popeck's team's misconduct] is
unacceptable. I see people on your team constantly late and
leaving early. What's the plan to
address?” (Team Member Emails 7). Months later,
Popeck met with Young and told him that she believed that her
team's productivity suffered because many of her team
members were never at their desks. (Popeck Dep. 201:7-202:8;
Young Dep. 222:4-14). This comment stood out to Young, so he
asked Popeck to create an action plan designed to remedy her
team's behavior; he also began observing Popeck's
team's work area to “see if whoever she identified
[as being absent] was actually there.” (Young Dep.
222:10-11). In doing so, he discovered that
Popeck-rather than her team members-was often
smoking cigarettes on the loading dock rather than working at
her desk. (Young Dep. 222:4-14, 249:24-250:3).
informed Ford of Popeck's conduct, and in August 2014
Ford and Young met with Popeck and notified her that she was
being demoted to the auditor position. (Young Dep. 252:10-20;
Ford Dep. 102:3, 103:15-16, 104:3-4, June 16, 2016, DN
109-5). Young told Popeck during the meeting that her
excessive break-taking did not exemplify “model
leadership”- particularly in light of the action plan
she created for her team. (Popeck Dep. 216:24-217:13). Popeck
did not deny that she had been taking excessive breaks or
suggest that the breaks she took were related to her IBS.
(Ford Dep. 105:24-106:8).
by her demotion, Popeck approached the company's owner,
George Rawlings (“Mr. Rawlings”), and asked him
to reinstate her as an ATM. (Popeck Aff. ¶ 53). Popeck
claims she told Mr. Rawlings that Young had been treating her
differently since she began taking FMLA leave, but Mr.
Rawlings has testified that “[s]he never mentioned
that.” (See Popeck Aff. ¶ 53; Rawlings
Dep. 114:9-14, Sept. 14, 2016, DN 109-8). In any event, Mr.
Rawlings declined to reverse Popeck's demotion but
allowed her to maintain an ATM's base salary. (Rawlings
October 2014, Popeck's FMLA leave expired, so Ford
provided Popeck with the company's Americans with
Disabilities Act (“ADA”) paperwork and told her
that perhaps she could use ADA leave until her FMLA time
replenished. (Popeck Dep. 253:17-21; Parker Dep. 164:8-17,
Aug. 24, 2016, DN 109-6). In completing Popeck's ADA
paperwork, Dr. Rhoads indicated that Popeck did not have a
condition that substantially limited a major life activity
but recommended that she be allowed to arrive to work late
and leave early, as she did while on FMLA leave.
(See 2014 ADA Paperwork, DN 116-15). Despite Dr.
Rhoads' evaluation, Parker concluded that Popeck was
entitled to bridge the gap between her stints of FMLA leave
with a one-month term of ADA leave so that she would be able
to keep her job. (Parker Dep. 164:10-12). Rawlings Co.
re-designated Popeck's leave as FMLA leave in December
2014. (Ford Dep. 116:4-12).
that same time, Popeck was unsuccessfully settling back into
her role as an auditor. On November 12, 2014, Popeck's
ATM, Diana Chapman (“Chapman”), served her with a
written warning indicating that over the course of
approximately one month she had accumulated nine instances of
tardiness and had left work early on five different
occasions. (First Written Warning, DN 116-19). At least five
of the instances of Popeck's tardiness-and four of the
occasions where she left early-were unrelated to her IBS.
(First Written Warning).
terms of Popeck's work habits and employment at Rawlings
Co., 2015 largely resembled 2014-i.e., it was marked by
underperformance and excessive absences. Her performance
dwindled, as evidenced by Rawlings Co.'s 2015 performance
chart which shows that Popeck failed to meet her invoicing
expectation in every month except March and April.
(See 2015 Performance Chart 1, DN 116-31). In
addition, Popeck exhausted all of her FMLA leave in July and
sought ADA leave as a “gap-filler” in
August. (2015 ADA Paperwork). Thereafter, Popeck
accumulated “26 full day absences” between July
and September-even though neither her FMLA nor ADA paperwork
said anything about full day absences being
necessary. (Ford Dep. 186:3-4).
2015, Popeck began to experience financial problems,
partially from Rawlings Co.'s practice of prorating her
pay to reflect partial and full day absences, even on days
when her leave was designated as ADA rather than FMLA leave.
(See Ford Dep. 132:4-10). Popeck approached Mr.
Rawlings to ask “if [she] could take an advance against
[her] own commissions, because [she] needed some extra money
towards rent or bills . . . .” (Popeck Dep. 297:9-13). Mr.
Rawlings told Popeck he was unsure whether such an advance
was possible, but that he would find out. (Popeck Dep.
296:3-10). He then contacted Joan O'Brien
(“O'Brien”), Vice President of Human
Resources, to inquire why Popeck was missing so much work.
(O'Brien Dep. 232:10-14, Aug. 25, 2016, DN 109-11). Ford
informed O'Brien that she believed that Popeck was on
medical leave, so they retrieved Popeck's medical
paperwork to confirm that impression. (Ford Dep. 185:15-20,
185:24-25). When Ford reviewed Popeck's paperwork, she
noticed that “the doctor had said no, [Popeck's IBS
does] not . . . substantially limit one of life's major
activities, ” and that, in any event, the doctor had
not recommended that Popeck take full days off from work.
(Ford Dep. 186:1-6).
learning that Popeck's medical paperwork did not
establish that she had a disability-much less justify her
taking full day absences-Ford took corrective
action. She issued Popeck a written warning
notifying her that her absenteeism rate between July and
September had reached 59% and informing her that she
“may not miss any more [full days of] work
until [she had] a positive accrual balance [of vacation or
sick time] or once again [became] eligible and approved for
FMLA leave.” (Second Written Warning 1, DN 116-26).
Ford then advised Popeck that Rawlings Co. needed additional
information about her medical issues so that it could
evaluate whether Popeck should receive an accommodation of
intermittent leave under the ADA. (Requests to Dr. Rhoads 1,
DN 116-27). Ford faxed Dr. Rhoads and asked her to confirm
that a 59% rate of absenteeism was acceptable given
Popeck's condition and whether “it will be
necessary for [Popeck] to continue to be absent at this
rate.” (Requests to Dr. Rhoads 5). Dr. Rhoads responded
that she expected Popeck's absenteeism to decrease after
her medications were regulated. (Dr. Rhoads Letter 1, DN
116-28). Ford then sent Dr. Rhoads a follow-up letter asking
for a time-frame in which the company could expect
Popeck's absenteeism to decrease and for additional
information regarding how late Popeck could be expected to
arrive to work and how early she might leave. (Requests to
Dr. Rhoads 5). Dr. Rhoads never provided a clear answer to
Ford's questions, but Dr. Rhoads' office later
confirmed that Dr. Rhoads would not have approved Popeck for
full-day absences. (Ford Dep. 184:11-19; Doll Dep. 29:13-20,
Dec. 15, 2016, DN 116-18).
light of the information from Dr. Rhoads, Rawlings Co.
revoked Popeck's “gap-filler” ADA
accommodation during a meeting held on November 10, 2015.
(Ford Dep. 181:4-6). Ford informed Popeck that “being
[at work] from 8:00[am] ¶ 5:00[pm] Monday through Friday
was an essential function of the job” and that she
could not miss any more full or half days of work until she
accrued vacation time or was approved for FMLA leave. (Popeck
Dep. 314:18-342:9). Ford also notified Popeck that she would
be subject to termination if she missed any more
work. (Popeck Dep. 342:25-343:3).
felt like she was being treated unfairly and complained to
Mr. Rawlings that Ford was singling her out for mistreatment
due to her disability. (Popeck Aff. ¶ 74). Popeck told
Audit Division Director Thomas Ricketts
(“Ricketts”) that Chapman was mistreating her due
to her disability as evidenced by the fact that Chapman
refused to process one of her invoices. (Popeck Aff.
¶¶ 83-87). Finally, Popeck threatened to file a
charge against Rawlings Co. with the Equal Employment
Opportunity Commission (“EEOC”). (Popeck Aff.
the November 10 warning, Popeck's performance showed no
signs of improvement. On November 19, Ford sent Popeck an
email admonishing her for taking lengthy lunch breaks and
“several [smoking] breaks close to 30 minutes”-as
well as for reporting to work nearly two hours late the day
before. (Final Written Warning 1, DN 116-33). Ford told
Popeck: “This is your final warning . . . .”
(Final Written Warning 1). On December 8, Popeck arrived
nearly two hours late for work. (Popeck Dep.
181:25-182:1). As a result, Rawlings Co. terminated her
employment, citing tardiness and excessive breaks as the
reasons for her discharge. (Ford Dep. 181:21-182:9).
then applied for unemployment benefits with the Kentucky
Department of Unemployment Insurance (“KDUI”). In
her application, Popeck noted that she was terminated
because-despite having submitted all paperwork necessary to
prove entitlement to an accommodation under the ADA-she was
denied an accommodation. (Unemployment Paperwork 2, DN
116-34). Ford submitted a response to Popeck's
unemployment application on behalf of Rawlings Co. noting
that Popeck “never submitted paperwork establishing a
disability.” (Unemployment Resp. 7, DN 116-35).
then initiated this action against Rawlings Co. and Ford. In
particular, Popeck alleges that Defendants violated: (1) the
ADA, 42 U.S.C. §§ 12101-12213, and its state-law
counterpart, the Kentucky Civil Rights Act
(“KCRA”), KRS Chapter 344; (2) the FMLA, 29
U.S.C. §§ 2601-2654; (3) KRS 341.990(6)(1); and (4)
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201-219, and its state-law counterpart, the
Kentucky Wage and Hour Act (“KWHA”), KRS
Court has subject-matter jurisdiction of this matter based
upon federal question jurisdiction. See 28 U.S.C.
§ 1331. The Court also has supplemental jurisdiction
over Popeck's state law claims. See Id. §
STANDARD OF REVIEW
ruling on a motion for summary judgment, the Court must
determine whether there is any genuine issue of material fact
that would preclude entry of judgment for the moving party as
a matter of law. See Fed. R. Civ. P. 56(a). The
moving party bears the initial burden of stating the basis
for the motion and identifying evidence in the record that
demonstrates the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). If the moving party satisfies its burden, the
non-moving party must then produce specific evidence proving
the existence of a genuine issue of fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
the Court must view the evidence in the light most favorable
to the non-moving party, the non-moving party must do more
than merely show the existence of some “metaphysical
doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986) (citation omitted). Rather, the non-moving party must
present specific facts proving that a genuine factual issue
exists by “citing to particular parts of the materials
in the record” or by “showing that the materials
cited do not establish the absence . . . of a genuine
dispute.” Fed.R.Civ.P. 56(c)(1). “The mere
existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at
Defendants' Motions for Summary
their motion, Defendants seek dismissal of all of
Popeck's claims. Each claim will be addressed below.
I & IV - ADA/ KCRA Discrimination
ADA prohibits an employer from discriminating against
‘a qualified individual with a disability because of
the disability' in the terms and conditions of
employment.” Cassidy v. Detroit Edison Co.,
138 F.3d 629, 633 (6th Cir. 1998) (quoting 42 U.S.C. §
12112). “Disability discrimination claimants can
proceed under the separate legal theories of disparate
treatment[, ] failure to accommodate[, ]” and failure
to engage the employee in an interactive process. Webb v.
Humana Inc., 819 F.Supp.2d 641, 645 (W.D. Ky. 2011);
Kleiber v. Honda of Am. Mfg., Inc., 420 F.Supp.2d
809, 825 (S.D. Ohio 2006). While these theories have some
overlapping elements, they are distinct, and the Court will
analyze them separately.
Failure to Accommodate/Revocation of Accommodation
survive summary judgment on a failure to accommodate claim, a
plaintiff must establish that: (1) she is disabled within the
meaning of the ADA, (2) she is qualified for the position
with or without a reasonable accommodation, (3) her employer
knew or had reason to know of her disability, (4) she
requested a reasonable accommodation, and (5) her employer
failed to accommodate her. Hedrick v. W. Reserve Care
Sys., 355 F.3d 444, 452 (6th Cir. 2004) (citation
omitted). An employer may rebut an employee's prima facie
case by showing that her proposed accommodation (if
implemented) would eliminate an essential function of her
job. EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th
Cir. 2015) (explaining that an accommodation that removes an
essential function of the position “is per se
unreasonable” (citations omitted)).
the first, second, and fourth elements of Popeck's claim
are at issue here and, as explained below, the second and
fourth elements ultimately turn on the same inquiry.
(See Def. Rawlings' Mot. Summ. J. 25-37).
Accordingly, the Court will analyze the following questions:
(1) whether Popeck was disabled within the meaning of the
ADA, and (2) whether regular and predictable attendance is an
essential function of working as an auditor at Rawlings Co.
the ADA, a “disability” is: “(A) a physical
or mental impairment that substantially limits one or more
major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment . . . .” 42 U.S.C. §
12102(1)(A)-(C). For the purposes of this definition,
“major life activities” include-“but are
not limited to”-“eating, sleeping, . . .
working” and “the operation of . . . digestive
[and] bowel” functions. Id. §
12102(2)(A)-(B). While the ADA “must be construed in
favor of broad coverage, ” it is “not a general
protection for medically afflicted persons.” See
Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 703
(6th Cir. 2008) (citation omitted); Perry v. Am. Red
Cross Blood Servs., No. 3-13-1146, 2015 WL 1401058, at
*2 (M.D. Tenn. Mar. 26, 2015). “[N]ot every impairment,
illness or injury will constitute a disability.”
Perry, 2015 WL 1401058, at *2. The parties agree
that Popeck's IBS constitutes an
“impairment.” The remaining inquiry is whether
that impairment substantially limits a major life activity.
claims that her IBS substantially limits her ability to work,
as well as her digestive and bowel functions. (Pl.'s
Mot. Partial Summ. J. Re. Disability 11-13). She has
submitted an affidavit indicating the extent to which IBS
impacts her life in support of her position. (See
Popeck Second Aff. ¶¶ 14-17). Among other things,
one of Popeck's affidavits indicates that she is
“required to occupy the restroom about 500% more, on
average, than [she] used to, ” and that she sometimes
“cannot leave [her] house for about three to four hours
due to severe diarrhea.” (Popeck Second Aff.
¶¶ 14-15). In addition, Popeck argues that Dr.
Rhoads' conclusion that her IBS does not
substantially limit a major life activity is irrelevant
because no amount of paperwork is “necessary to justify
a disability . . . .” (Pl.'s Resp. Rawlings'
Mot. Summ. J. 48 (citing EEOC Compliance Manual §
counter that Popeck's IBS is not a disability because Dr.
Rhoads indicated on both sets of Popeck's ADA paperwork
that her IBS does not substantially limit a major life
activity. (Def. Rawlings' Mot. Summ. J. 25-27).
Defendants further represent that sister courts faced with
similar fact patterns-i.e., situations where: (1) the
employee's doctor indicates that the employee's
impairment does not limit her life activities, and (2) the
employee submits nothing more than a self-serving affidavit
to prove her disability-have concluded that the employee was
not disabled within the meaning of the ADA. (Def.
Rawlings' Mot. Summ. J. 26).
a close question, the record contains a dispute of fact
regarding the extent of Popeck's physical impairment;
consequently, Defendants are not entitled to summary judgment
as to Popeck's accommodation claim on the ground that she
is not disabled. While Dr. Rhoads opined twice in submissions
to Rawlings Co. that Popeck's IBS did
not substantially limit any of her life
activities, he did diagnosis IBS and Popeck's description
of the symptoms of that disease appear to be at odds with Dr.
Rhoads' stated opinion of no impairment. (See
2015 ADA Paperwork 2; 2014 ADA Paperwork 2; Popeck Second
Aff. ¶¶ 14-17). As a result, a reasonable jury
could find in favor of Popeck on this issue.
point out that a sister court has concluded that an employee
did not have a disability when his physician indicated in
medical paperwork that his impairment did not limit any major
life activities. See Sanders v. Bemis Co., Inc.,
No. 3:16-CV-00014-GFVT, 2017 WL 405920, at *4-5 (E.D. Ky.
Jan. 30, 2017). In that case, however, the court premised its
conclusion on more than just the employee's doctor's
representations; indeed, other record evidence-including the
plaintiff's own testimony-suggested that his impairment
was not a disability. Id. at *5. Popeck's case
is therefore distinguished because her testimony contradicts
Dr. Rhoads' findings. (See Popeck Second Aff.
¶¶ 14-17). Further, the fact that Popeck's
affidavit is the only evidence establishing her disability
does not necessarily mean that she has failed meet her
burden. While courts have remarked that an employee's
“self-serving assertions concerning her conditions'
impact on various ‘major life activities'”
are insufficient to create a question of material fact for
trial, they have only done so when discussing affidavits that
failed to contain “examples [or] details”
regarding how the employee's impairment impacted her
life. See, e.g., Hensler v. City of
O'Fallon, No. 09-CV-268-DRH-PMF, 2012 WL 293401, at
*8 (S.D. Ill. Jan. 31, 2012); see also Jenkins v.
Nat'l Bd. of Med. Exam'rs, No. 08-5371, 2009 WL
331638, at *3 (6th Cir. Feb. 11, 2009) (“In the ADA
Amendments Act, Congress made clear that it intends for the
ADA to give broad protection to persons with disabilities and
that the Supreme Court's holding in [Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002), ] is at odds with Congress's intent. Congress
stated in the findings of the Act that various Supreme Court
holdings ‘have narrowed the broad scope of protection
intended to be afforded by the ADA, thus eliminating
protection for many individuals whom Congress intended to
protect' with the result that “lower courts have
incorrectly found in individual cases that people with a
range of substantially limiting impairments are not people
with disabilities.'” (citation omitted)).
Popeck's affidavit provides such examples. (See
Popeck Second Aff. ¶¶ 1-17).
said, neither the paperwork from Dr. Rhoads nor the fact that
Popeck has only submitted an affidavit to evidence her
disability are fatal to her claim. Because a reasonable jury
could discount Dr. Rhoads' ADA paperwork and credit
Popeck's description of her symptoms, Defendants are not
entitled to summary judgment as to Popeck's accommodation
claim on the ground that she is not disabled.
second and fourth elements-whether Popeck was qualified for
her position and whether she suggested a reasonable
accommodation-turn on whether regular and predictable
attendance is an essential function of working as an auditor
at Rawlings Co. Popeck requested as an accommodation a work
schedule so flexible that she could essentially come and go
as she pleased. If regular and predictable attendance
is an essential function of working as an auditor at
Rawlings Co., then: (1) Popeck-even with her proposed
accommodation-would be unable to perform that function,
precluding her from establishing that she is a qualified
individual with a disability; and (2) Popeck's proposed
accommodation, if implemented, would eliminate an essential
function of her position and be “per se
unreasonable.” See Ford, 782 F.3d at 761
(citations omitted); Williams v. AT&T Mobility Servs.
LLC, 847 F.3d 384, 392 (6th Cir. 2017) (explaining that
an employee is “not qualified” for her position
if she “fail[s] to perform [an] essential
function” of her job, with or without an accommodation
determining whether a function is essential to a particular
job, EEOC regulations direct courts to consider the following
(i) The employer's judgment as to which functions are
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the
(iv) The consequences of not requiring the incumbent to
perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job;
(vii) The current work experience of incumbents in similar
29 C.F.R. § 1630.2(n)(3)(i)-(vii); see also 42
U.S.C. § 12111(8).
EEOC v. Ford Motor Co., the Sixth Circuit analyzed
these factors, the ADA's text, and informal EEOC
guidance, and concluded that each supported the proposition
that “[r]egular, in-person attendance is an essential
function-and a prerequisite to essential functions-of most
jobs, ” “especially those involving teamwork and
a high level of interaction . . . .” Ford, 782
F.3d at 761-63. Similar to the case at bar, Ford
dealt with a plaintiff who suffered from IBS and had a
difficult time working on a set schedule. Id. at
759. As a result, the plaintiff's employer (Ford Motor
Company), attempted to accommodate her by allowing her to
work on an alternative schedule and telecommute as needed.
Id. at 759. Even with these accommodations, however,
the plaintiff could not maintain a predictable work schedule,
and her performance suffered as a result. Id. After
trying other accommodations, the plaintiff asked to
telecommute up to four days a week. Id. Ford
determined the request unreasonable, refused to implement it,
and eventually terminated the plaintiff's employment for
poor performance. Id. at 760. The plaintiff then
sued Ford for failing to accommodate her disability.
Id. The district court granted summary judgment in
favor of Ford on the ground that the plaintiff's proposed
accommodation (allowing her to come to work sporadically) was
unreasonable given that regular and predictable attendance
was an essential function of her job. See Id. The
Sixth Circuit, sitting en banc, affirmed. Id.
from the ADA's language and regulatory factors, the Sixth
Circuit also noted that common sense and volumes of authority
from other circuits supported this proposition:
A sometimes-forgotten guide likewise supports the general
rule: common sense. Waggoner v. Olin Corp., 169 F.3d
481, 482-84 (7th Cir.1999). Non-lawyers would readily
understand that regular on-site attendance is required for
interactive jobs. Perhaps they would view it as “the
basic, most fundamental” “activity” of
their job. Webster's Third New International Dictionary
777, 920 (1986) (defining “essential” and
“function”). But equipped with a 1400-or-so page
record, standards of review, burdens of proof, and a
seven-factor balancing test, the answer may seem more
difficult. Better to follow the commonsense notion that
non-judges (and, to be fair to judges, our sister circuits)
hold: Regular, in-person attendance is an essential
function-and a prerequisite to essential functions-of most
jobs, especially the interactive ones. That's the same
rule that case law from around the country, the statute's
language, its regulations, and the EEOC's guidance all
point toward. And it's the controlling one here.
Id. at 762-63.
indisputable evidence in this case establishes that regular
and predictable on-site attendance is an essential function
of working as an auditor at Rawlings Co. The job description
for Popeck's position states that auditors work
“full time” and that an auditor's essential
duties are “[r]eview[ing]/audit[ing] healthcare claims
. . . .” (Job Description 1, DN 116-6). Only an auditor
who is at work can complete this task, as auditors
are not permitted to access their work computer desktops from
home given that their work involves “handl[ing] a large
volume of confidential and HIPAA protected personal
information . . . .” (Barrens Aff. ¶ 4, DN 116-2).
Similarly, Rawlings Co.'s Employee Handbook states: (1)
“[o]ur normal work week consists of 40 hours per week.
Our standard office hours are 8:00 a.m. to 5:00 p.m., Monday
through Friday, ” and (2) “[p]art of performing
your job well means being where you are supposed to be when
you are supposed to be there.” (Rawlings' Employee
Handbook 22, DN 116-3). Further, effective
collaboration-which “typically [involves] person to
person contact”-is crucial at Rawlings Co., as
collaboration is the means by which the company improves the
way it does business. (Barrens Dep. 248:8-9); see also
Ford, 782 F.3d at 762 (noting that jobs involving
teamwork typically require regular and predictable on-site
attendance). “[R]egular and predictable schedule . . .
is important for managers to be able to manage their people
effectively, [and] for clients to have their . . .
expectation[s] met . . . .” (Barrens Dep. 241:3-6).
This is exactly what Popeck told her subordinates when she
counseled them before taking leave: “punctual arrival
and reliable presence [are] key factors in providing
excellent service . . . .” (Team Member Emails 1-2).
Popeck's performance in 2015-a year in which she missed
many days of work-underscores the proposition that regular
and predictable attendance is essential at Rawlings Co.: when
Popeck worked sporadic hours on shortened shifts, her work
product suffered. (Defs.' Resp. 24; 2015 Performance
Chart 1). Under these circumstances, the record reflects that
Popeck's work at Rawlings Co. fell within the mainstream
where regular attendance was an essential job function.
effort to create a dispute of fact on this issue, Popeck
raises four arguments, none of which are availing. First, s
claims that Rawlings Co.'s job description for auditors
does not specifically state that office hours are
from 8:00 a.m. until 5:00 p.m. (Pl.'s Mem. Supp. Mot.
Partial Summ. J. Re. Essential Job Functions 3-4, DN 113-1).
To the contrary, the employee handbook states that
“standard office hours are 8:00 a.m. to 5:00 p.m.,
Monday through Friday.” (Rawlings' Employee
Handbook 22). Second, she argues that Rawlings Co. allowed
certain employees to arrive to work late when their commute
was regularly delayed due to construction on their route.
(Pl.'s Mem. Supp. Mot. Partial Summ. J. Re. Essential Job
Functions 4, 9; Ford Dep. 278:2-6). But those employees still
came to work regularly and predictably; they did not
simply “come in whenever they [felt] like it.”
(Ford Dep. 197:12-13). Third, Popeck complains that employees
in Rawlings Co.'s IT department have been permitted to
access their work computer desktops remotely and work from
home. (Pl.'s Mem. Supp. Mot. Partial Summ. J. Re.
Essential Job Functions 5; Hull Dep., 42:15-25, July 28,
2017, DN 109-12). Auditors, however, are not
permitted to work remotely. (Barrens Aff. ¶ 4). Finally,
Popeck claims that “[t]here were no production-based
consequences to letting Plaintiff start [work] later . . .
.” (Pl.'s Mem. Supp. Mot. Partial Summ. J. Re.
Essential Job Functions 9). ...