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Popeck v. Rawlings Company LLC

United States District Court, W.D. Kentucky, Louisville Division

May 3, 2018

ADRIANNE POPECK PLAINTIFF
v.
RAWLINGS COMPANY LLC; and DEBRA FORD DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, JUDGE UNITED STATES DISTRICT COURT

         This 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 MOOT.

         I. STATEMENT OF FACTS AND CLAIMS

         This action involves several employment law claims brought by Adrianne Popeck (“Popeck”) against her former employer, The Rawlings Company LLC[1] (“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).

         During 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).

         Rawlings 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.]).

         While on intermittent FMLA leave, Popeck failed to meet the expectations that Rawlings Co. sets for its managers.[2] 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?”[3] (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.”[4] (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).

         Young 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).

         Upset 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 Dep. 115:22-116:2).

         In 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.[5] (Parker Dep. 164:10-12). Rawlings Co. re-designated Popeck's leave as FMLA leave in December 2014. (Ford Dep. 116:4-12).

         Around 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).

         In 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.[6] (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.[7] (Ford Dep. 186:3-4).

         In 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 . . . .”[8] (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.[9] (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).

         Upon 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.[10] 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).

         In 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.[11] (Popeck Dep. 342:25-343:3).

         Popeck 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. ¶ 88).

         Following 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.[12] (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).

         Popeck 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).

         Popeck 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 337.275-.405.

         II. JURISDICTION

         This 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. § 1367(a).

         III. STANDARD OF REVIEW

         In 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 (1986).

         While 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 252.

         IV. DISCUSSION

         A. Defendants' Motions for Summary Judgment

         In their motion, Defendants seek dismissal of all of Popeck's claims. Each claim will be addressed below.

         1.Counts I & IV - ADA/ KCRA Discrimination

         “The ADA prohibits an employer from discriminating against ‘a qualified individual with a disability because of the disability' in the terms and conditions of employment.”[13] 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.

         a. Failure to Accommodate/Revocation of Accommodation

         To 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.[14] 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)).

         Only 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.

         i. Disability

         Under 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 . . . .”[15] 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.

         Popeck claims that her IBS substantially limits her ability to work, as well as her digestive and bowel functions.[16] (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 § 802.156)).

         Defendants 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).

         Though 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.

         Defendants 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.[17] 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).

         That 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.

         ii. Essential Functions

         The 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.”[18] 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 (citations omitted)).

         When determining whether a function is essential to a particular job, EEOC regulations direct courts to consider the following factors:

(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(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; and/or
(vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3)(i)-(vii); see also 42 U.S.C. § 12111(8).

         In 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.

         Aside 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.

         The 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 . . . .”[19] (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.

         In an 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). ...


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