MELISSA BRUMLEY, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
No. 18-5453
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
November 30, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 18a0258p.06. Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:17-cv-00677—Aleta Arthur Trauger, District Judge.
Before: CLAY, McKEAGUE, and BUSH, Circuit Judges.
COUNSEL
ON BRIEF: Constance Mann, THE LAW OFFICES OF CONSTANCE MANN, Franklin, Tennessee, for Appellant. J. Day Peake III, William E. Shreve, Jr., PHELPS DUNBAR LLP, Nashville, Tennessee, for Appellee.
McKEAGUE, Circuit Judge. Melissa Brumley injured her back while unloading heavy packages from a United Parcel Service, Inc. (UPS) truck. After receiving workers’ compensation and taking a leave of absence, Brumley returned to work without any injury-related restrictions. Several months later, she sued UPS for failure to accommodate, in violation of the Americans with Disabilities Act,
Brumley works primarily as a “sorter” at a UPS warehouse in Franklin, Tennessee. Sorters do what the title suggests: they sort mail in preparation for delivery. A subset of the sorter position relevant to this case is called “local sort.” That position involves taking small packages, weighing 10 pounds or less, from a conveyer belt and placing them in various slots depending on their final destination. The sorter then bundles the sorted packages into a bag and lifts the bag onto another conveyer belt for transportation to a delivery car. According to UPS, filled bags frequently weigh between 20 and 50 pounds and occasionally weigh between 51 and 70 pounds. Brumley claims that, in her five years working local sort, she never lifted a full 70 pounds. But Brumley admits that when she was hired, she knew that working as a sorter might require her to lift packages weighing that much or more. The written job description of “sorter” provides that sorters in all sorting positions must frequently lift 20 to 50 pounds and occasionally lift 51 to 70 pounds.
Until she injured her back, Brumley also worked as a temporary cover driver, delivering and picking up packages in UPS‘s familiar brown trucks. As a temporary cover driver, Brumley filled in for sick or vacationing full-time drivers or when routes were especially busy. According to UPS, that position also requires employees to sometimes lift packages weighing up to 70 pounds. Brumley confirms she has lifted 70-pound packages working as a driver.
In December 2015, on one of her delivery routes, Brumley injured her back while unloading heavy packages from the delivery truck. She received workers’ compensation benefits for the injury. And in January 2016, she and UPS entered into an agreement for her to perform safety inspections of UPS‘s package trucks as part of a 30-day Temporary Alternative Work (TAW) arrangement while she recovered from the injury. At the end of the TAW-period, Brumley assumed temporary disability status and went on leave from work through July 2016.
On July 29, 2016, before she returned to work, Brumley had a follow-up visit with Dr. John Klekamp, the doctor she had chosen from a panel of UPS doctors to treat her for her back injury. Dr. Klekamp gave Brumley two return-to-work notes that included permanent work restrictions. The first instructed Brumley to avoid lifting more than 30 pounds and to avoid pushing or pulling more than 30.5 pounds. The second stated: “[Brumley] may return to work on 07/29/2016. Restrictions: May return to local sort. Restriction: No driving.” That same day, Brumley clocked in to work and hand-delivered both notes to her supervisor, Richard Bonee. But Bonee would not allow Brumley to work, because both of Brumley‘s positions—sorter and driver—required lifting over 30 pounds. So he sent Brumley home. Bonee also informed Brumley that she could receive work accommodations to account for her restrictions.
Brumley is a member of the International Brotherhood of Teamsters, Local 480. On August 16, 2016, she began filing grievances with the Union, complaining that she was improperly denied the right to work with permanent restrictions despite presenting UPS with a return-to-work note from her doctor. On August 18, 2016, UPS Occupational Health Supervisor Jurgen Rosner became aware that Brumley had requested a job-related accommodation.1
Once UPS received the forms, Rosner and Human Resources Manager Elveta Cooper coordinated with Brumley to schedule a meeting to discuss potential accommodations for Brumley. They met on October 11, which was—according to UPS—the earliest date that Rosner‘s and Cooper‘s schedule would allow. At that meeting, Cooper explained to Brumley that they would review Brumley‘s restrictions and try to find an appropriate position at UPS that she could fill. Brumley stated, however, that she desired to voluntarily discontinue the ADA interactive process and return to Dr. Klekamp to have her work restrictions lifted. Cooper responded that if Dr. Klekamp removed Brumley‘s restrictions, Brumley could return to work without accommodations and the interactive process would end.
So on October 27, 2016, Brumley met with Dr. Klekamp and requested that he remove her restrictions. He did so, and Brumley returned to work a few days later. Because Brumley had returned to work without restrictions, UPS officially closed the interactive process on November 7. Brumley continues to work at UPS to this day.
Several months later, Brumley initiated this action, bringing claims under the ADA for failure to accommodate, a claim under the ADA for disability discrimination, a claim for workers’ compensation retaliation, a claim for denial of right to leave under the Family and Medical Leave Act, and a claim for disability discrimination under the Tennessee Human Rights Act and the Tennessee Disability Act.2 She seeks damages for lost wages and employment benefits for the limited period of time that she was home from work during the interactive process. The district court granted summary judgment in UPS‘s favor on all of Brumley‘s claims, denied Brumley‘s motion for summary judgment as moot,3 and denied Brumley‘s motion to
II
Brumley asserts that the district court erred in its rulings on UPS‘s motion for summary judgment and on Brumley‘s motion to alter or amend. We address each ruling in turn.
A
We review the court‘s summary judgment ruling de novo, construing the facts in the light most favorable to Brumley. Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017) (citation omitted). Summary judgment is appropriate only if UPS can show “that there is no genuine dispute as to any material fact and [UPS] is entitled to judgment as a matter of law.”
The ADA prohibits discrimination “against a qualified individual on the basis of disability in regard to . . . [the] terms, conditions, and privileges of employment.”
Brumley purports to bring failure-to-accommodate claims based on both direct and indirect evidence. But ADA discrimination “claims premised upon an employer‘s failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination“; the familiar McDonnell-Douglas burden-shifting framework (applicable to claims premised on indirect evidence) therefore does not apply. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868–69 (6th Cir. 2007). Under the “direct-evidence framework,” once an ADA plaintiff establishes that an employer failed to accommodate a known disability, the employer bears the burden “of proving that . . . a proposed accommodation will impose an undue hardship upon the employer.” Id. (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004)).
The district court concluded that Brumley failed to establish a prima facie case because, even assuming the first four elements of the claim were met, Brumley could not show that UPS failed to grant her accommodation request. Rather, Brumley voluntarily abandoned the interactive process. Therefore, the district court reasoned, Brumley could not demonstrate that UPS was unwilling to accommodate her permanent restrictions. Brumley contends that ruling was in error for two main
The ADA does not obligate employers to make on-the-spot accommodations of the employee‘s choosing. Under the ADA, an employer must engage in an “informal, interactive process” with the employee to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Kleiber, 485 F.3d at 871 (quoting
Kleiber, 485 F.3d at 871; accord Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). An employer‘s refusal to provide an accommodation to the position of the employee‘s choice immediately upon the employee‘s request is not, in and of itself, a failure to accommodate under the ADA.
Thus, UPS had no legal obligation to place Brumley in local sort on the very day she returned to work. UPS had discretion to provide a reasonable accommodation as identified through the interactive process. For this reason, if Brumley voluntarily abandoned the process, UPS is not liable for failing to provide a reasonable accommodation.
However, Brumley argues that she did not voluntarily abandon the interactive process—rather, she was coerced into doing so by hub manager Bonee. Nevertheless, we hold that the evidence Brumley cites is insufficient to create a genuine issue of material fact as to her voluntariness. Brumley repeatedly asserts that when Bonee sent her home from work, he announced that “UPS never allows someone to work with permanent work restrictions.”5 According to Brumley, that assertion just goes to show that she could not have returned to work as long as she was
accommodation process and located another placement” at UPS had she not chosen to have her restrictions removed instead. She admits she made the “decision to return to the doctor and get a revised restriction form.”
The evidence in the record does not create a genuine issue of material fact as to the voluntariness of Brumley‘s decision. Accordingly, we find that Brumley cannot state a prima facie failure-to-accommodate claim. We thus affirm the district court‘s grant of summary judgment in favor of UPS.
B
When it comes to the district court‘s denial of Brumley‘s motion for reconsideration under
Brumley‘s
According to Brumley, the change in controlling law stems from our decision in Watford v. Jefferson Cty. Pub. Sch., 870 F.3d 448 (6th Cir. 2017). Watford concluded that holding an employee‘s grievance proceeding in abeyance if the employee also files a charge against the company with the Equal Employment Opportunity Commission is a retaliatory action that may violate Title VII. Id. at 454–55. In applying that case to her own, Brumley formulates a new argument: because UPS held her Union grievances in abeyance once her interactive process was initiated, it retaliated against her in violation of the ADA. But Brumley did not bring an ADA retaliation claim. And at no point prior to her
Brumley also asserts that the district court erred in not granting her
The district court rejected Brumley‘s motion on this basis as well. It first concluded that the evidence was not newly discovered because the doctor‘s release was generated a few days before she filed her response in opposition to UPS‘s motion for summary judgment. Regardless, the district court explained, the evidence was irrelevant because it went to a temporary lifting restriction, whereas the basis of Brumley‘s discrimination claim is her previous permanent lifting restriction. Accordingly, the evidence would not have helped Brumley prove her failure-to-accommodate claim. Brumley fails to show that the district court‘s ruling was an abuse of discretion.
Finally, Brumley argues that the district court erred in denying her request—also embedded in her
Cf. Hackworth v. Progressive Cas. Ins. Co., 468 F.3d 722, 732 (10th Cir. 2006) (explaining that a party seeking to obtain additional discovery “must attempt to do so by submitting an affidavit in direct response to a motion for summary judgment, not following the district court‘s disposition of that motion” (citing
III
For all these reasons, we AFFIRM.