Cathie KEMPTER, Plaintiff-Appellant, v. MICHIGAN BELL TELEPHONE COMPANY, dba AT & T Michigan; Tracy Bain; Rick Spiece, aka Rick Speice; Renee Garcia, Defendants-Appellees.
No. 13-1036
United States Court of Appeals, Sixth Circuit
Aug. 26, 2013
535 Fed. Appx. 487
BOGGS, Circuit Judge.
Cathie Kempter, a customer service representative for Michigan Bell Telephone (MBT), developed carpal tunnel syndrome and took eight months of medical leave, but was fired after her leave expired and she failed to return to work. Kempter brought this discrimination suit under the Americans with Disabilities Act, arguing that she was fired on the basis of her disability rather than her attendance, and that MBT failed to provide her either of her two proposed reasonable accommodations. One accommodation involved placement in a light-duty position for recuperating employees; the other involved transfer to a vacant position that involved less typing. The district court rejected Kempter‘s arguments, finding that her carpal tunnel syndrome was not a “disability” under the ADA, and alternatively that both of her accommodations were unreasonable and unsupported by the facts. On appeal, MBT requests imposition of sanctions for prosecuting a frivolous appeal. For the following reasons, we affirm the decision of the district court and impose sanctions on Kempter‘s counsel.
I
For over 12 years, Kempter worked as a customer service representative for MBT. Customer service representatives answer calls from customers and input their information into a computer database. The job involves at least six hours of typing a day. (See Kempter Deposition at 38, R.13-12 at PageID# 119.) As a result of her extensive keyboard and mouse work, Kempter developed carpal tunnel syndrome.
In July 2009, Kempter began medical leave to have surgery for her carpal tunnel syndrome. Three months after the surgеry, Kempter‘s doctor, Dr. Arno Weiss, indicated that Kempter was restricted from “working with computer keyboard or typing for more than 2 hours a day” and the restrictions are “to be permanent.” (Dr. Weiss Note, R.13-9.) On March 10, 2010, Kempter was examined by Dr. B.J. Page, an independent doctor engaged by MBT to determine if Kempter was entitled to continuing disability leave. Dr. Page concluded that Kempter did not require further treatment and was fit to return to work without “any work restrictions.” (Dr. Page Report at 5, R.15-8.) As a result, MBT‘s disability carrier informed Kempter on March 22 that her disability benefits were being terminated and that she was expected to return to work the next day, Tuesday, March 23. (Kempter Fax, R.13-8.) Kempter responded that day, attaching the note from Dr. Weiss and explaining that “I am unable to keyboard no more than 2 hours per day ... [s]o at this time I will not be able to return to work.” (Ibid.) Kempter ultimately
Kempter was fired because she had reached the last step in MBT‘s “progressive discipline path” for unexcused absences. (Attendance Policy at 4, R.13-3.) Under MBT‘s attendance policy, five “chargeable disability absences” within a five-year period result in termination (the first absence is excused, the second two receive written warnings, the fourth three days unpaid suspension). (Ibid.) “Chargeable disability absences” аre those absences caused by “on/off the job injury or illness, as well as any relapse, for which the employee receives short-term disability benefits, but are not protected by the FMLA.”1 (Id. at 1.) By contrast, “excluded absences,” which do not factor into attendance determinations, include absences covered by the collective bargaining agreement (e.g., paid sick leave), the FMLA, company policy, or other applicable law. (Ibid.) Kempter had а poor attendance record during her twelve-year tenure at MBT, often due to exhausting her FMLA leave, accumulating 31 steps of corrective action with 10 suspensions. (Grievance Minutes, R.13-4.) At the time of her March 23-25 absence, Kempter was at the fourth disciplinary stage, having been suspended without pay on November 13, 2008. (Suspension Letter, R.13-6.) Because this was the fifth absence in five years, she was fired.2
Kempter filed a written grievance on April 30, 2010, which was denied at all three steps of MBT‘s internal grievance process. (Grievance Documents, R.15-7.) She subsequently filed this suit, raising claims under the
The district court granted summary judgment for MBT. The court first held that Kempter‘s carpal tunnel syndrome did not constitute a disability for the purposes of the ADA, as it is not an impairment that “substantially limits one or more of the major life activities of such individual.”
Subsequently, MBT moved for costs and attorney‘s fees, $1,970 and $25,000 respectively. (R.21.) The district court granted costs, since they are awarded as a matter of course to the prevailing party,
Kempter appeals the grant of summary judgment. MBT has filed a motion under
II
We review de novo a district court‘s grant of summary judgment. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). Summary judgment is appropriate where the record shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The ADA prohibits employment discrimination against a “qualified individual on the basis of disability.”
Before proceeding to the analysis, we note that Kempter does not appear to understand the relevant ADA standard. The entire argument section of Kempter‘s brief below was devoted to arguing that MBT terminated Kempter on the basis of her disability, as shown by both direct and indirect evidence. R.15. This might be enough in a sex or race discrimination case, see
On appeal, Kempter has added a new section to her brief, styled as “Kempter‘s Retaliation Claim.” Appellant‘s Br. at 24. This “retaliation” claim was not raised below, and the “protected activity” Kempter engaged in (a letter sent from her lawyer five months after termination) cannot support a claim of retaliation because it occurred after the adverse employment action. See
III
As Kempter does not dispute that typing is an “essential function” of the job of a customer service representative, she must demonstrate that she could have performed her essential job duties with a reasonable accommodation. Before the burden shifts to the employer to show an undue burden, the plaintiff must propose an accommodation that is objectively reasonаble to employers in general. Walsh v. United Parcel Svc., 201 F.3d 718, 726 n. 3 (6th Cir. 2000). None of her proposed accommodations are reasonable.
First, Kempter argues that she could have been accommodated in the same way as Diana Rodabaugh, who also had carpal tunnel syndrome, by giving her a light-duty, non-typing job. As Kempter explains, this position was part of MBT‘s “Transitional Work Program,” which gives injured employees the chance to ease back into regular employment. Employers are not required to convert “temporary light-duty positions for recuperating employees” into permanent positions. land Cnty. Sheriff‘s Dep‘t” cite=“227 F.3d 719” pinpoint=“730” court=“6th Cir.” date=“2000“>Hoskins v. Oakland Cnty. Sheriff‘s Dep‘t, 227 F.3d 719, 730 (6th Cir. 2000). Since Kempter‘s doctor‘s note indicates that her restrictions are “permanent,” this was not a reasonable accommodation for Kempter to propose.4 If, instead, this light-duty accommodation is considered a permanent position, Kempter has not shown that there was an additional job opening; it is not reasonable fоr an employer to create a new position to accommodate a disabled employee. See Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997). In addition, based on Rodabaugh‘s description of the job, the proposed accommodation is glaringly unreasonable: a job that consists of “not doing anything” serves no function.
Second, Kempter argues that there was a vacant position as a “technical associate,” which opened up shortly after her termination and was filled by Keith Hannen. Employers do generally have an obligation to offer as an accommodation positions that are currently unavailable but will become vacant in a reasonable period of time. Monette, 90 F.3d at 1187. But the employer need not reassign the employee if the employee is not qualified, or if another employee‘s rights would be displaced. Hedrick, 355 F.3d at 457. Here, the “technical associate” position, although not requiring as much typing as a customer service representative position, still mandated typing and mouse aptitude. Keith Hannen testified that he took a typing test to qualify for the job, and that the job involved repetitive point-and-click mouse operations. Kempter has not provided any factual basis to counter MBT‘s claim that she would be unqualified for the job. In addition, assignment of the position to Kempter would have violated Hannen‘s rights under the collective bargaining agreement, since “surplussed” employees (i.e., those affected by downsizing) are supposed to have priority. Kempter does not dispute this fact, but argues that the ADA trumps collective bargaining rights. But the case cited by Kempter states that “the employer‘s showing of violation of the rules of a seniority system is by itself ordinarily sufficient” to render the accommodation unreasonable. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). Kempter has not shown any sort of “special circumstances” that would warrant deviating from the general rule. Ibid.
Finally, Kempter suggests thаt there was another unfilled technical associate position that she could have taken. But, as Kempter herself testified, this previous employee‘s position was vacant only because that position had been “downsized.” (Kempter Deposition at 75, R.13-12.) Just as employers are not required to create new positions, they are not required to resurrect old positions.
As none of her accommodations are objectively reasonable, her сlaim fails.
IV
Kempter also challenges the district court‘s alternate holding that she could not be considered disabled in the first place, since her carpal tunnel syndrome was a “limited impairment [that] would not significantly restrict her ability to perform a broad range of jobs in various classes.” McKay v. Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997). She argues that the 2008 ADA Amendment Act called into question the cases on which the
We decline to address this issue. The record on the issue is sparse, and given the wеakness of Kempter‘s proposed accommodations, this case is resolvable without construing the 2008 Amendments.
V
MBT has moved for sanctions under
This case does not involve any serious misrepresentations,5 vexatious tactics, or other overt signs of bad faith. (See Order Denying Fees, R.28 at 7) (noting lack of “vexatious tactics” below). However, Kempter‘s appeal suffers from such serious factual and legal issues that sanctions are warranted.
In her appeal, Kempter cоntinues to rely on a liberal, and often misleadingly selective, reading of the record. Kempter does not discuss the facts surrounding her dismissal, failing to directly mention much less justify her March 23-25 absence. She fails to reference the note from her doctor, Dr. Weiss, recommending permanent restrictions. While passing over these facts, she irrelevantly cites her lawyer‘s pre-suit demand letter in full. In her reasonable accommodation argument, Kempter neglects to mention that thе second supposedly vacant technical associate position Kempter “could have been placed in” had been eliminated two years earlier. She
Kempter‘s appeal also suffers from the failure to properly apply the relevant legal standard. Kempter never lays out the elements of an ADA discrimination claim, and despite the district court‘s passing on the issue, continues to press her argument that she was fired on the basis of disability. Much of Kempter‘s appellate brief is lifted from belоw, and success on the new issue raised the effect of the 2008 ADA Amendments would not be sufficient to warrant reversal. It is true that Kempter added several pages of argument with respect to the only necessary issue: whether MBT could have provided reasonable accommodation.6 But this added argument was presented in the form of a “retaliation” claim, which had not been raised below, either in briefing or in the complaint. In addition, the only really new argument in this section that the ADA may take precedence over collective bargaining rights is easily refuted. MBT responded with several cases establishing the contrary proposition, to which Kempter has not responded. Indeed, Kempter failed to file a reply brief altogether, a problematic factor given the strength of MBT‘s response. Leeds v. City of Muldraugh, 174 Fed. Appx. 251, 256 (6th Cir. 2006).
Standing alone, these deficiencies might be considered mere “negligence or incom-
Kempter‘s response to the motion for sanctions serves only to underscore the previously stated inadequacies. The response fails to recognize that the district court granted the motion for summary judgment on two independent grounds, and that reasonable accommodations must be shown to establish a prima facie ADA case. Instead, the response claims that “the district court committed reversible error when granting Defendant‘s [motion for summary judgment] basеd on pre-ADAAA case law” and that “asserting her right to challenge a district court opinion on appeal without fear of sanctions is the best way to accomplish meaningful change in civil rights law.” Resp. to Mot. for Sanctions at 11 7, 9. But invoking the high principles of civil-rights litigation and issues of first impression does nothing to change the underlying factual weakness of her claims. Instead of actually defending her proposed accommodations, Kempter‘s response tersely statеs that “the District Court Opinion speaks for itself.” Id. at 110. Rule 38 and
VI
For the foregoing reasons, the district court‘s grant of summary judgment is affirmed. We impose a $5,000 sanction on Kempter‘s counsel, payable to MBT within 30 days of the issuance of our mandate.