Szasz v. Dolgencorp, LLC

CELIA SZASZ, Plaintiff-Appellant, v. DOLGENCORP, LLC, Defendant-Appellee.

No. 14-2344

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

September 2, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0620n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.^*

CLAY, Circuit Judge. Plaintiff Celia Szasz ("Plaintiff") appeals the district court's order granting summary judgment in favor of Defendant Dolgencorp, LLC ("Defendant"), in this action brought under the Michigan Persons with Disabilities Civil Rights Act ("DCRA"), Mich. Comp. Laws §§ 37.1102, 37.1202(1)(b), (g). Plaintiff asserts that her employment was unlawfully terminated when Defendant failed to offer an accommodation for her disability. The district court found otherwise. For the reasons stated herein, we AFFIRM the judgment of the district court in full.

BACKGROUND

Procedural History

Plaintiff initiated this lawsuit against Defendant on December 21, 2012, in the Eastern District of Michigan, pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. Thecomplaint alleged that Defendant discriminated against Plaintiff in violation of the DCRA by choosing to terminate her employment rather than make a reasonable accommodation for the disability she alleged, following a motor vehicle accident. The complaint sought upwards of $75,000 in damages, based on her economic (i.e., lost wages) and non-economic harms, including emotional distress, pain and suffering, and reputational harm. Plaintiff also sought injunctive relief in the form of an order of reinstatement so that she could return to her former position.

Defendant answered by denying all liability and asserting a variety of affirmative defenses. Following discovery, Defendant moved for summary judgment. Subsequent to briefing and a hearing, the district court issued its opinion and order, granting summary judgment in favor of Defendant. This timely appeal followed.

Factual Background

A. Plaintiff's Position at Dollar General

Plaintiff began working for Defendant as a part-time store clerk in 2007 at the Dollar General store located in Washington, Michigan.¹ She subsequently transitioned to full-time employment and was promoted to lead sales associate. In September of 2010, she was again promoted, and became the assistant store manager. Plaintiff, for all intents and purposes, maintained ultimate responsibility on the ground for operating the store. Toward the end of her employment, Plaintiff was the only employee in a management position at the Washington, Michigan location.

The store was "thinly staffed," with a regular shift involving only two employees—a clerk and a manager. Plaintiff described the manager position as requiring her to do whatevertasks had to be done to effectively operate the store at any particular moment. A typical day for Plaintiff involved going to the bank in the morning, handling paperwork (e.g., merchandise orders), opening the store, rearranging merchandise, insuring that the correct promotional posters were in place, running the cash register, and helping customers. There were also days that required more physical activity. For example, on "truck day," which occurred once a week, new merchandise would arrive and Plaintiff would help restock the shelves, after supervising the unloading of the truck. Among the heavier items in the store that needed to be restocked were large packages of dog food and cases of laundry detergent. Plaintiff explained in her deposition testimony that although she could direct a store clerk to do all of the stocking while she worked the register, restocking (like all other tasks) was mostly a team effort, and responsibilities rotated.

On weekdays, Plaintiff often opened the store by herself, and the part-time clerk would not arrive until later in the day. But prior to Plaintiff being the only manager at her store, on occasion, for brief periods there would be three employees in the store at the same time when the manager and assistant manager met to share information about the store's operation. Apart from this overlap, there were never more than two employees in the store. Plaintiff, in addition to her administrative duties, was responsible for the same tasks as any of the part-time store clerks. She swept and mopped the floors, and she cleaned the bathroom. She also helped deconstruct and rearrange shelving when the store's layout invariably changed each summer. This task required removing all merchandise from the shelves. In Plaintiff's own words, she did "[w]hatever needed to be done," because the store did not have task-specific positions such as a cashier.

Plaintiff remained in this hands-on management role until December 13, 2011, when she was effectively terminated, inasmuch as she was not permitted to return to work following theexhaustion of the medical leave she had taken to recover from injuries sustained in an auto accident.

B. The Accident and Disability Leave

The accident occurred on the evening of July 28, 2011. Plaintiff was driving through an intersection when her car was broadsided by a vehicle that had run a red light. She was taken to the hospital and remained there until early in the morning the following day. She suffered pain and swelling in her extremities as a result of the accident, and she became prone to experiencing headaches, blurred vision, and dizziness. Despite these symptoms and her trip to the emergency room, Defendant allegedly demanded that Plaintiff open the store the same morning she was released from the hospital. She complied, but Defendant eventually sent another manager from a different store to relieve Plaintiff from the remainder of her shift. Plaintiff returned to work the next couple of days, until she was able to go on disability leave pursuant to the Family and Medical Leave Act ("FMLA"), after she submitted to Defendant a letter from her doctor.

Plaintiff remained on FMLA leave through October 2011 while she continued to recover from her injuries and attend physical therapy. In early November 2011, when Plaintiff's FMLA leave was exhausted, she submitted another note from her doctor that stipulated her readiness for work, contingent on certain restrictions. Plaintiff was not permitted to work for more than four hours a day or to lift more than ten pounds.

Defendant outsourced the administration of its leave programs to a third-party provider named Matrix. After receiving Plaintiff's note, Matrix contacted Defendant's leave administrator, Rebecca Cherry. Ultimately, Cherry was responsible for determining whether an accommodation could be made for an employee claiming a disability. To make this determination, she would compare the affected individual's written job description with the limitations the individual was requesting that Defendant accommodate.

The job description for assistant store manager is broken down into six sections, each of which contains a number of bullet points. The sections are titled as follows: "General Summary," "Duties and Essential Job Functions," "Knowledge and Skills," "Work Experience and/or Education," "Competencies," and "Working Conditions and Physical Requirements." (R. 20-2, Job Description). Key to this dispute is the following bullet point, listed under the heading "Physical Requirements": "[f]requent and proper lifting of up to 40 pounds; occasional lifting of up to 55 pounds." (Id.). Based on this requirement, Cherry informed Matrix that "[t]he 10 lb lifting restriction prohibits [Plaintiff] from performing the essential functions of her job." (R. 28-9, Matrix Log). Matrix in turn informed Plaintiff that Defendant was unable to accommodate her, but that she could take advantage of Defendant's Medical Leave of Absence program, which would afford her an additional six weeks of leave. She was also informed that if her medical restrictions did not change prior to the exhaustion of this additional leave, she would need to contact Defendant directly to seek further accommodations. Defendant's Medical Leave program explicitly stated that "[e]mployment may be terminated at the end of leave if the employee does not return to work, unless otherwise required by law." (R. 27-3, Medical Leave Policy, PageID # 330).

C. Termination and Lawsuit

The six-week period of Plaintiff's additional leave passed without much change to her condition. She submitted a new authorization from her doctor indicating that she could possibly work eight hours a day, but that the ten-pound lifting restriction was still in place. Matrix indicated that Plaintiff needed to call Cherry because she had exhausted her leave and the same restriction which could not previously be accommodated was still in place. There is no record of Plaintiff contacting Cherry or any of Defendant's agents after her leave expired, and Plaintiff testified that she does not recall whether she engaged in any conversations with Defendant afterDefendant initially told her that the ten-pound lifting restriction could not be accommodated. Plaintiff was also unaware of the date that her employment was officially terminated. She simply found a different job and moved on, until seven months later when, on October 15, 2012, she sent a letter to Defendant stating her intention to bring a claim under the Americans with Disabilities Act ("ADA").²

When no resolution was reached, Plaintiff filed her lawsuit. In addition to the facts discussed above, Defendant submitted a declaration in support of its motion for summary judgment, which Plaintiff had signed upon the commencement of her employment. This declaration stipulated that Plaintiff was capable of performing the "essential job function" of "[f]requent and proper lifting of up to 40 pounds[, and] occasional lifting of up to 55 pounds," "with or without a reasonable accommodation." (R. 24-3, Phys. Reqs., PageID # 178). Defendant also submitted the sworn declaration of...