ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court comes ' Defendant Memphis'Light, Gas & Water’s Motion for Summary Judgment filed March 31, 2015. (ECF No. 44). On May 4, 2015, Plaintiff Andrea Mosby Meachem filed her Response in Opposition, (ECF No. 53), to which Defendant filed a Reply on May 29, 2015, (ECF No. 56).
I. FACTUAL HISTORY
In 2005, Plaintiff was hired by Defendant for an Attorney 3 position
On January 2, 2013, during the 23rd week of Plaintiffs pregnancy, Plaintiffs doctors discovered that Plaintiffs cervix had shortened, hospitalizing Plaintiff. (ECF Nos. 44-1 at p. 8; 53 at p. 3). As such, Plaintiff underwent corrective surgery on January 3, 2013. Plaintiff called her supervisor, Patterson, and informed her of Plaintiffs medical complications, which would require bed rest for up to eleven weeks. (ECF No. 44-1 at pp. 8-10). At first, Patterson seemed agreeable to allowing Plaintiff to continue working once Defendant was provided appropriate supporting documentation; (ECF Nos. 53 at p. 3; 53-1 at ¶ 109) (stating that Plaintiff continued working until her accommodation request was denied); see also (ECF No. 44-23) (January 30, 2013,' denial letter).
On January 7, 2013, Plaintiff made an official accommodation request to work from bed, either within the hospital or within her home. (ECF No. 44-1 at p. 'll). That same day, the ADA Committee (“Committee”) — consisting 'of Eric Conway, Steve Day, and Rutha Griffin
Defendant provided Plaintiff with job-protected sick leave until exhausted and short-term disability benefits thereafter. Id. Plaintiff appealed Defendant’s denial on February 2, 2013, via email. (ECF No. 53 at p. 5). On February 9, 2013, Dr. Paul Neblett provided an “Attending Physician Statement” advising Plaintiff not to work, which assisted Plaintiffs application for short term disability insurance. (ECF No. 44-1 at p. 8). Also, on February 18, 2013, Dr. Neblett authorized a “Certification of Health Care Provider for Employee’s Serious Health Condition,” noting Plaintiffs inability to drive to work and sit at a desk all day, which allowed for Plaintiff to receive sick leave under FMLA. Id. Defendant again notified Plaintiff of their denial on February 19, 2013, to which Plaintiff again appealed on February 21, 2013. (ECF No. 53 at p. 5).
In total, Plaintiff utilized nearly four weeks of sick leave with the remainder covered by the short-term disability benefits. (ECF No, 44-1 at p. 12). Plaintiff stated that she had symptoms beginning January 2, 2013, such as being “unable to concentrate, analyze information and make legal decisions.” Id. at p. 14. Dr. John Cooper could not determine whether such symptoms were caused or exacerbated by Plaintiffs “high risk” pregnancy, domestic issues, or Defendant’s failure to provide Plaintiffs accommodation. Id.
With Plaintiff able to return the work on April 1, 2013, the accommodation period pertinent to this matter lasted from January 3, 2013, through March 31, 2013. Id. at pp. 3, 10. From February 26, 2013, until the end of the accommodation period, Plaintiffs license to practice law was suspended for failure to pay the annual registration fee. Id. at p. 14. Such failure to pay was a clerical error on the part of the Defendant. See (ECF No. 53 at p. 10, 26-27) (stating that Defendant had a temporary billing clerk at the time of the error). The suspension was publicized under Plaintiffs name via the Tennessee Bar Association Board of Governors email distribution list and website. (ECF No. 44-1 at p. 15). Plaintiffs return to work in April 2013 was fully compensated despite Defendant’s awareness of Plaintiffs suspension. Id. Plaintiff, however, claims that she lacked awareness until receiving a June 28, 2013 letter from Patterson. (ECF Nos. 53 at p. 10, 26-27; 53-1 at ¶ 78) (claiming that Plaintiffs suspension was never discussed prior).
Patterson, as Plaintiffs supervisor, completed a written appraisal for Plaintiffs performance for 2013. (ECF No. 44-1 at p. 15). Plaintiff was assigned an overall
II. LEGAL STANDARD
Under Fed.R.Civ.P. 56, the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment must prove clearly and convincingly that there is no genuine issue of material fact, while the Court must draw all reasonable inferences and read in the light most favorable to the non-moving party. Kochins v. Linden-Alimak, Inc.,
When confronted with a properly supported motion for summary judgment, the respondent must set forth specific facts showing that there is a genuine dispute for trial. See Fed.R.Civ.P. 56(c). A genuine dispute for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252,
A. Failure to Accommodate under the ADA
For Plaintiff to establish her prima facie ease for failure to accommodate, Plaintiff “must show that: (1) [s]he is disabled within the meaning of the Act; (2) [s]he is otherwise qualified for the'position, with" or without reasonable accommodation; (3) h[er] employer knew or had reason to know about h[ér] disability; (4) [s]he requested an accommodation; and (5) the employer failed to provide the necessary accommodation.” Melange v. City of Center Line,
“When a plaintiff seeks to establish his case indirectly, ... the McDonnell Douglas burden-shifting approach applies....” Hedrick v. W. Reserve Care Sys. & Forum Health,
(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is ‘otherwise qualified’ for the position despite his or her disability:' (a) without accommodation from the employer; (b) with an allegéd ‘essential’ job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
Id. at 869 (citing Hedrick,
“The term ‘qualified individual’ means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds — ”42 U.S.C. § 12111(8) (“[Consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description ..., this description shall be considered evidence of the essential functions of the job.”). “[T]he employee bears the burden of showing she can perform the ‘essential functions’ of the job, with or without accommodation.” Johnson,
“The employee also bears the burden of proposing [a] reasonable accommodation ].” Johnson, 443. Fed.Appx. at 983. “Once the employee requests an accommodation, the employer has a duty to engage in an ‘interactive process’ to ‘identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.’” Melange,
Once the prima facie case is established, “the burden shifts to the employer to dem
i. Whether Plaintiff is otherwise qualified
Defendant contends that Plaintiff was not “otherwise qualified” for three independent reasons: (1) bed rest restriction inhibited Plaintiffs ability to be-physically present; (2) Plaintiffs mental .disabilities limited her legal decision making; and (3) Plaintiff had a suspended law license. (ECF No. 44-1 at p. 22) (“If [an] employer claims ... that [a] disabled individual would be unqualified to perform the essential functions of the job even with the proposed accommodation, the disabled individual must prove that he or she would in fact be qualified for the job if the employer were to adopt the proposed accommodation.” (quoting Johnson,
As to Defendant’s first contention, the Court does not find indisputable evidence that physical presence is an essential function of the Attorney 3 position. “A job function is essential if its removal would fundamentally alter the position.” Kiphart v. Saturn Corp.,
(2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function;
(ii)The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
(iii) The function , may be highly specialized. so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(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 experieneé of incumbents in similar jobs.
29 C.F.R. § 1630.2(n). Considering such factors, the Court finds that the majority are in favor of finding physical presence non-essential.
•First, evidence of the employer’s judgment as to the requirement of physical presence is inconsistent. The record does not include a clear, written policy requiring physical presence.
Second, Defendant has not provided a written job description that lists physical presence as an essential function.
Third, the work experience of Fred Jones, a past attorney 3, provides his personal way of handling the essential functions of an attorney 3. It does not, however, provide dispositive evidence that physical presence was essential. See (ECF Nos. 44-1 at p. 25; 44-8). To the extent that Plaintiff would be unable to attend a specific event — which is normal due to a typically overblown schedule— Defendant has a clearly defined pecking order for call-outs and other emergency situations based on seniority. See (ECF Nos. 44-1 at p. 27; 53 at p. 7).
The question is not whether the functions could be performed, but whether they could be performed effectively from a remote location. EEOC v. Ford Motor Co.,
With regards to Defendant’s contention that Plaintiffs mental disability rendered her unqualified, it would be reasonable for the jury to find that Plaintiffs mental disabilities were exacerbated by Defendant’s failure to accommodate Plaintiff, and thereby allowing for the reasonable inference that Plaintiffs mental disability’s symptoms began on January 2, 2013, but the severity was not present until after the denial of the accommodation. See (EGF No. 44-22) (stating that as of January 9, 2013, there was “no effect on [Plaintiffs] ability to perform mental tasks”). Specifically, Plaintiff lists her first symptoms as “[l]ack of sleep, uncontrollable crying, trouble concentrating....” (ECF No. 44-30 at p. 1). Moreover, when asked “Is your condition related to your occupation?”, Plaintiff responded with a yes. Id. at p. 2. With Dr. Cooper being “unable to state with a reasonable medical certainty what portion of Plaintiffs mental disability stemmed from her dangerous pregnancy, her problems with her husband or having to use her sick leave benefits once her accommodation request was denied,” whether Plaintiffs inability to make legal decisions began on January 2, 2013, or after Defendant’s failure to accommodate is a question of fact for the jury to consider.
As to Plaintiffs suspended law license, the Defendant cannot now claim Plaintiff is unqualified, when such disqualification came by the negligence of the Defendant. Specifically, Plaintiff contends that “[a]ll bills for bar license fees are mailed directly to [Defendant’s] billing clerk.” (ECF No. 53 at p. 10, 26-27) (stating that Defendant “has- always assumed responsibility for paying its attorney’s bar license fees”). At the time Plaintiffs payment was due, Defendant had a temporary billing clerk. Id. Such billing clerk failed to properly make payment for Plaintiff. Id. Additionally, Defendant continued to compensate Plaintiff in the month of April despite Defendant’s awareness of the suspension. (ECF No. 44-1 at p. 15). Plaintiff, on the other hand, states that she did not become , aware of such suspension until receiving a June 28, 2013 letter from Patterson. (ECF Nos. 53 at p. 10, 26-27; 53-1 at ¶ 78). As such, whether the suspension of the law license was. the fault of Defendant or Plaintiff is thereby a question of fact for the jury.
The Court finds that Plaintiff has met her burden in establishing her prima facie case. Although Defendant provides evidence to the contrary, such - evidence is to be weighed by the jury.
ii. Whether Defendant suffers an undue hardship
Now that Plaintiff has established her prima facie case, the burden shifts to the Defendant to show that the proposed accommodation “‘would impose an undue hardship on the operation of its business.’ ” Rorrer,
An undue hardship is defined as “requiring significant difficulty or expense.” 42 U.S.C. § 12111(10)(A).
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include—
(i) the nature and cost of the accommodation needed under this Act;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation, or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
Id. at § 12111(10)(B). Without Defendant providing more than .conclusory statements, the Court is not able to analyze any of the above factors to determine whether Plaintiff’s accommodation requires “significant difficulty or expense.” Id. at § 12111(10)(A); see also (ECF No. 53 at p. 21).
Specifically, Plaintiffs. request, at the very least, requires remote access to her electronic files. (ECF No. 53 at p. 23). To the extent that such, access is insufficient, all it would require is scanning and then emailing to Plaintiff the necessary documents.
iii. Whether Defendant’s offered accommodation was reasonable
Although, “an employee cannot force her employer to provide a specific accommodation if the employer offers another reasonable accommodation,” whether Defendant’s offering was a reasonable accommodation is clearly within the purview of the jury. See Talley v. Family Dollar Stores of Ohio, Inc.,
iv. Whether Plaintiff suffered damages
Lastly, Defendant contends that Plaintiff cannot prove damages. However, it is clear from Defendant’s offered accommodation that Plaintiff suffered tangible economic loss by forfeiture of sick leave and reduction in compensation. Further, Plaintiff lost the ability to further “accrue additional sick leave, vacation leave and bonus day benefits while she was unable to work.” (ECF No. 53 at p. 27).
B. Pregnancy Discrimination under the THRA
Defendant moved for summary judgment as to all of Plaintiffs claims. (ECF Nos. 44 at p. 1; 56 at p. 17). Primarily, Defendant contends — for the same reasons argued for under the ADA — that Plaintiff is not otherwise qualified. As discussed above in Part III.A. and below in Part III.C., this is a matter better suited for the jury-
C. Retaliation under the ADA and THRA
“A prima facie case of retaliation requires a showing that ‘(1) the plaintiff engaged in legally-protected activity; (2) the defendant knew about the plaintiffs exercise of this right; (3) the defendant then took an employment action adverse to the plaintiff; and (4) the protected activity and the adverse employer action are causally connected.” Spence v. Donahoe,
i. Whether Plaintiff has sufficient evidence to establish a causal connection between her ADA claim and the contents of her 2013 performance appraisal
Defendant contends that Plaintiff cannot establish a causal connection between her ADA claim and the contents of her 2013 performance appraisal by tempo
However, Plaintiff does not rely merely on temporal proximity. Tuttle v. Metro. Gov’t of Nashville,
ii. Whether Plaintiff has suffered an adverse employment action
Defendant contends that Plaintiff has not suffered an adverse employment action. (ECF No. 44-1 at p. 38). Specifically, Defendant states that they “actually assisted Plaintiff by excusing her from a representation that would have created at least the appearance of a conflict of interest.” Id.; see Tenn. Supreme Cr. Rule 8, RPC 1.7(a)(2) (“A concurrent conflict of interest exists if ... there is a significant risk that the representation will be materially limited by the ... personal interest of the lawyer.”). Such provides an articulated reason for why such was not retaliatory, but it does not make the decision less adverse.
in. Whether Defendant’s articulated reasons can be found as pretextual
Defendant contends that Plaintiff cannot present evidence that Defendant’s articulated reasons are pretext. (ECF No. 44-1 at pp. 37-39). However, “the same circumstances which establish a causal connection between [Plaintiff’s] protected activity and her termination also serve as sufficient evidence” of pretext. Cantrell v. Nissan N. Am., Inc.,
IV. CONCLUSION
For the reasons stated above, the Court DENIES Defendant’s Motion for Summary Judgment.
Notes
. On June 9, 2015, Plaintiff filed a Notice regarding .some evidentiary objections made by Defendant within their Reply. (ECF No. 59).
. The Job Description for the Attorney 3 position lists "essential functions” as follows:
1. Perform senior level legal assistance to prosecute and defend, in accordance with the Vice President & General Counsel, all suits by or against the Division; and provide analysis and counsel on legal, policy, compliance issues, and actual or anticipated lawsuits.
2. Review and evaluate investigations; based on laws or facts, determine the method of investigation, its extent, legal sufficiency of evidence, applicable laws and the basis and method of settlement. If settlement is not indicated, determine method of defense at law or equity in the court.
3. Perform legal research on pending cases and current problems.
4. Render legal services and opinions of rights, obligations and privileges for Division employees as requested.
5. Draft, negotiate and prepare contracts and other legal documents; review and approve proposed contracts and legal documents.
6. Negotiate, in accordance with the Vice President & General Counsel, insurance representatives, lawyers, etc. regarding settlements.
7. Interview and take depositions of witnesses; arrange for and conduct pre-trial conferences; and keep Division up to date on new/revised laws, compliance standards and regulations.
8. Represent the Division and try cases in court; and may act as agent of the- Division in various transactions.
9. Supervise, direct and train assigned employees such as: paralegals, medical services, support staff, and/or legal students.
10. Perform other duties as directed.
See generally (ECF No. 44-11) (providing the full description of the position).
. Mr. Conway is the Human Resources Compliance Coordinator, Mr. Day is the Manager of Labor and Employee Relations, and Ms. Griffin is the Manager of Employment Services. (ECF No. 44-1 atp. 11).
. Ms. Davis is the Medical Services Coordinator and nurse for Defendant. Id. at 12.
. There is evidence in the record that such process was not in'fact interactive. See (ECF •No. 53 at p. 3) ("Mr. Conway told [Plaintiff] that [Defendant’s] President, Jerry Collins, directed ... Patterson to deny [Plaintiff’s] request" prior to the interactive process meeting.); see also (ECF Nos. 44-13 atp. 10; 53-1 at ¶ 111; 53-19) (noting "No Telecommuting Per Jerry” dated January 3, 2013); (ECF No.
. Factor (v) does not have sufficient evidence in the record to be considered.
. Defendant does provide an email from March 14, 2011, which provides:
Please be reminded that office hours for the Legal Department are 8:30 a.m.-5:00 p.m. Monday through Friday. All employees, including lawyers, are expected to be at work and devoting their time and attention to Division business during those hours. As professionals, you are expected to set a good example for the support staff by being in the office on time and staying at work until the end of the day. If you anticipate arriving after 8:30 a.m., please contact the office to inform me of tire situation. Likewise, if you have a meeting or hearing in the downtown area that ends before 5:00, you are expected to return to the office to complete tire day’s work. Please see me with any questions you may have,
(ECF No. 44-14). Importantly, such policy allows for exceptions for anticipated issues, which implies that such presence in the office is negotiable in light of particular circumstances,. By analogy, such presence was always negotiable when attending to outside work.
. Defendant contends that physical presence is required for the following functions: • “(1) giving in-person and on the spot legal advice to various employees of the Division; (2) negotiating settlements and/or attending mediation sessions; (3) attending depositions, court hearings and trials on behalf of the Division (even when outside counsel has been retained); (4) performing call-out functions as needed; (5) supervising the two staff members in the medical department; and (6) accepting service and responding to subpoenas.” (ECF No. 44-1 at p. 24); see also (ECF No. 44-11) for comparison.
. Much of the burden required to accommodate Plaintiff could have been parsed out during the interactive process meeting held on January 15, 2013. However, it appears that many of Defendant’s concerns were not relayed to Plaintiff until her receiving of the denial letter. '
. Defendant contends that Plaintiff’s accrual of benefits are not hers, as she could not have utilized such if she was terminated. (ECF No. 56 at pp. 15 n. 10, 25 ¶ 138 & n. 16). However, Plaintiff is still employed with Defendant and was never terminated by Defendant. The Court declines to speculate as to what cause Defendant would have had to terminate Plaintiff.
. Such argument fails to take into account that Plaintiff after receiving the comments on three separate performance appraisals may have improved. Without the 2011 and 2012 performance appraisals in the record, the Court can only assume that such comments were not found in the more recent reviews of 2011 and 2012, which suggests that Plaintiff may have utilized the past comments to improve her work.
. Although Defendant provides the 2010 performance appraisal, which states that Plaintiff was counseled regarding her difficulty to get along with certain staff, as proof that such issues were brought to Plaintiff attention pri- or to 2013, the Court must look towards the 2013 retaliatory history. (ECF No. 56 at p. 15). Plaintiff is not complaining that the 2010 performance appraisal is retaliatory. Therefore, in the context of 2013, the Defendant has not provided proof that Plaintiff received any discussion during 2013.
.Plaintiff states that taking "these assignments away from [Plaintiff] creates the appearance — to colleagues as well as any potential future employers — that [Plaintiff] is incapable or unable to handle them, or unable to keep any personal issues separate from her professional responsibilities.” (ECF No. 53 at p. 32). Additionally, such reassignment has the potential to take out a rather significant portion of Plaintiff’s case load. Moreover, Plaintiff contends that such ethical rule was never cited by Defendant at the time of reassignment. See (ECF No. 53 at p. 33).