United States District Court, E.D. Tennessee
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
Seth Cannon previously worked for the University of Tennessee
at Knoxville (“UTK”) as a Service Aide in the
Department of Building Services. He claims that he was
terminated because of his disability in violation of the
Rehabilitation Act and the Americans with Disabilities Act
(“ADA”); that he experienced a hostile work
environment based on his disability; that UTK interfered with
his rights under the Family and Medical Leave Act
(“FMLA”), that he was terminated in retaliation
for exercising his FMLA rights; and that he was terminated in
retaliation for complaining about disability discrimination.
moved for summary judgment on all of plaintiff9;s claims
[Doc. 34] with supporting briefs and documentation [Docs. 35,
39] and plaintiff has responded in opposition [Doc. 37]. For
the reasons set forth herein, UTK9;s motion for summary
judgment will be GRANTED.
hired Seth Cannon as a Service Aide in 2007 for the
Department of Building Services [Doc. 34-1 at p. 7]. The
Department of Building Services provides professional
cleaning services to the UTK and Institute of Agriculture
campuses, consisting of approximately 280 buildings and 15
million square feet of space [Doc. 34-2 at ¶¶ 2-3].
Plaintiff reported to an immediate supervisor, who varied
over the years, and then to Gordon Nelson, the Assistant
Director of Building Services [Doc. 34-2 at ¶ 1].
undisputed that Service Aides perform physically demanding
work. Each Service Aide is expected to service an average of
35, 000 square feet per shift [Doc. 34-2 at ¶ 5]. Thus,
a Service Aide must be able to walk at a brisk pace, have a
full range of motion, including the ability to stoop, kneel,
crouch, and stand, and he or she must be able to lift as much
as 50 pounds [Id.]. According to the position
description, a Service Aide is expected to spend 75% of his
time cleaning buildings, 10% of his time cleaning and
extracting carpet, 10% of his time waxing and buffing floors,
and 5% of his time doing construction cleanup [Id.
at ¶ 6; Doc. 34-2 at p. 12]. Service Aides must be able
“to perform hard physical labor for long periods of
time” and “operate powered buffers, scrubbers,
extractor, etc.” [Doc. 34-2 at p. 13');">13]. The specific
tasks for a Service Aide include the following:
• Cleans and services assigned areas in buildings.
• Cleans restrooms, offices, and replenishes supplies.
• Picks up trash, empties garbage containers, and
removes trash to disposal area, sanitizes trash containers as
necessary to meet Health Department requirements.
• Cleans assigned areas by moving furniture, cleans
various types of furniture.
• Moves and replaces furniture.
• Scrubs vinyl and concrete floors.
• Vacuums and shampoos carpets, launders microfibers.
• Ability to strip, wax, and buff hard floors, and to
know when appropriate.
• Sets up and takes down staging, tables, chairs, wood
floors for different events or programs.
• Demonstrates reliability in attendance and
[Doc. 34-2 at ¶ 7, p. 15].
August 2012, plaintiff advised UTK that he suffered from
Moersch-Woltman Syndrome (“MWS”), also known as
“Stiff Person Syndrome” [Doc.
34-9]. MWS is a “rare disease of severe
progressive muscle stiffness of the spine and lower
extremities” with “muscle spasms triggered by
external stimuli or emotional stress” [Doc. 34-4 at p.
17]. Plaintiff described his symptoms as painful muscle
spasms all over his body, “resembling a grand mal
seizure, ” with some spasms “so severe they can
actually break bones” [Doc. 34-9 at p. 1]. Plaintiff
further stated that MWS “comes and goes” and that
stress and loud noises can trigger the muscle spasms
[Id.]. Plaintiff testified that he was diagnosed
with MWS by an emergency room physician, but that diagnosis
has not been confirmed by any of plaintiff9;s treating
physicians [Doc. 34-1 at pp. 2-3]. Regardless of the accuracy
of the diagnosis, UTK does not dispute that plaintiff had an
impairment and the record reflects that plaintiff sought
treatment for his symptoms from several physicians throughout
his tenure at UTK [see, e.g., Doc. 34-7].
had a documented history of problems with his attendance and
his performance at UTK and these issues often
overlapped. On October 13');">13, 2011');">11, Cannon received an
oral warning for unacceptable attendance because he had
incurred absences for which he had no accrued leave [Doc.
34-2 at ¶ 9, p. 17].[4" name="FN4"
id="FN4">4] As a result of this warning, Mr. Nelson
imposed the following requirements for any future medical
absences: (1) plaintiff must have enough sick leave to cover
the absence; (2) plaintiff must submit a doctor9;s
statement with specific information regarding his condition;
(3) and plaintiff must call in prior to the work shift and
speak to his foreman, supervisor, or Mr. Nelson as to the
absence [Doc. 34-2 at ¶ 10].
October 20, 2011');">11, Cannon received a written warning for
unacceptable work performance after a supervisor observed his
“equipment was in the closet and no work had been
done” thirty minutes after his shift had started [Doc.
34-2 at ¶ 11');">11, p. 18]. Cannon received a score of 9.5 out
of 25 on his 2011');">11 performance review, which is considered a
“rarely achieves expectations” rating, and his
supervisor stated he needed to “improve on attendance
and work performance” [Doc. 34-2 at ¶ 12, pp.
August 21, 2012, plaintiff received a written warning for
attendance, and then a final written warning for attendance
on April 18, 2013');">13 [Doc. 34-2 at ¶ 13');">13, 21');">p. 21]. Cannon
received a score of 12 out of 25 on his 2012 performance
review, which is considered a “sometimes achieves
expectations” rating [Doc. 34-2 at ¶ 14, pp.
22-23]. His supervisor noted that he needed
“improvement on his attendance” and “to
learn how to use his time wisely and learn how to use the
Nelson supervised plaintiff from August 27, 2012 to May 5,
2014 [Doc. 34-5 at ¶ 5]. She describes his attendance as
follows: “very poor” and “very unreliable,
” “he moved too slowly to complete the
responsibilities ordinarily assigned to Service Aides,
” and “he did not clean with the level of
professional detail that is expected of Building
Services” [Id.]. In sum, she observed that
plaintiff “rarely, if ever, did his job well and often
seemed completely disinterested in working”
[Id.]. Ms. Nelson gave plaintiff a score of 11');">11 out
of 25 on his 2013');">13 performance review [Id. at ¶
6; Doc. 34-5 at pp. 4-8]. Ms. Nelson9;s comments on his
performance review included the following: plaintiff
“is not often able to finish task [sic] that
he has been given to do for his everyday job, ” is
“not often able to perform his daily job duties and
complete his job assignments for the day, ” “I
can not count on Seth to be at work on a daily basis, ”
“Seth will leave work early and has missed a lot of
time this past year, ” and “Seth is often not
here and you can not count on him to be here [Id.].
Ms. Nelson states that she did not consider the 344.6 hours
of FMLA leave against plaintiff in scoring his dependability
for the performance review, but she did consider the 302
hours of non-FMLA absences for the year [Doc. 34-5 at ¶
10]. Because of his low performance review score, Ms. Nelson
completed a performance improvement plan for plaintiff which
stated that he needed to “[p]rovide professional
cleaning service to the area to which you9;re
assigned” [Doc. 34-5 at ¶ 11');">11; pp. 9-11');">11].
applied for intermittent FMLA leave on April 21, 2013');">13 and his
request was approved shortly thereafter [Doc. 34-6 at
¶¶ 4-5]. He exhausted his 480-hour (12 weeks) FMLA
leave entitlement on February 20, 2014 [Doc. 34-2 at ¶
16; Doc. 34-6 at ¶ 9, p. 17]. Around September 29, 2014,
plaintiff contacted UTK Human Resources to inquire about his
eligibility for additional FMLA leave. After reviewing his
attendance records, Human Resources concluded that he had not
worked enough hours in the preceding 12-month period to be
eligible for FMLA [Doc. 34-6 at ¶ 10]. In fact, from the
exhaustion of his FMLA leave in February 2014 until the
termination of his employment, plaintiff never had enough
hours of service in the preceding 12-month period to be
eligible for FMLA leave [Doc. 34-6 at ¶ 11');">11].
August 8, 2013');">13, plaintiff sent an email to the UTK ADA
Coordinator, Jennifer Richter, regarding his health issues
and possible accommodations under the ADA [Doc. 34-4 at
¶ 4, p. 6');">p. 6]. Plaintiff met with Ms. Richter on August 15,
2013');">13, and advised, “he has muscle spasms that keep him
from walking correctly, ” “he can lose his
balance and his legs are stiff, ” and “he cannot
lift weight” [Doc. 34-4 at ¶ 6]. He suggested that
periodic breaks and additional leave would help him perform
his job [Id. at ¶ 7]. Plaintiff did not return
the completed ADA Accommodation Certification to Ms. Richter
until April 14, 2014. On that form, plaintiff9;s physician
indicated that he suffered from “severe pain to lumbar
spine, severe muscle spasms to mainly truncal muscles due to
Stiff Man Syndrome and multiple disc herniations that causes
the cord to be [contracted]” [Doc. 34-4 at ¶ 13');">13,
p. 11');">11]. The form indicated that plaintiff had permanent
limitations in “lifting, pulling, tugging, bending,
standing for long periods” and he had difficulty
“sweeping, mop, vacuum, bending for long periods of
time, lifting heavy objects - trash” [Doc. 34-4 at
¶ 14, p. 11');">11]. Notably, the Accommodation form stated
that no possible job accommodations could improve his job
performance [Doc. 34-4 at ¶ 16; p. 12].
the summer of 2014, Aaron Nichols supervised plaintiff. Mr.
Nichols advised Mr. Nelson that plaintiff had missed work
despite having no sick leave to cover his absence and
plaintiff had exhausted his FMLA leave [Doc. 34-2 at ¶
20]. Thus, Mr. Nelson gave plaintiff an oral warning for
attendance and imposed the same three requirements for
medical absences as stated above [Id.]. After
missing work on July 1 and 7, 2014 with no accrued leave to
cover his absences, plaintiff received a written warning
regarding his attendance [Doc. 34-2 at ¶ 21, p. 24].
Plaintiff missed work again on July 15, 2014, also without
any accrued leave to cover the absence, and he received a
final written warning regarding his attendance [Doc. 34-2 at
¶ 22, 25');">p. 25].
24, 2014, plaintiff sent an email to UTK Human Resources
complaining of “discrimination, unfair treatment and
targeting, corruption and lies” [Doc. 34-17].
Plaintiff9;s email recounted his diagnosis of MWS,
asserted that his July 7 absence was the result of confusion
with his supervisor and that his July 15 absence was the
result of confusion about his sick leave balance
[Id.]. Plaintiff suggested that a reasonable
accommodation, per the ADA, would be that he receive leave
without pay or use annual leave for the “rare days I
have no choice but to miss” [Id. at p. 3]. He
further claimed that he was being punished for missing work
due to “medical issues beyond my control” and low
scores on his performance reviews “based purely upon
the fact that I am physically unable to move as fast as my
supervisors want me to move, or feel I should be able to
he was on final-warning status, plaintiff9;s absence
without leave on August 1, 2014 triggered a pre-termination
letter pursuant to UTK policy and he was placed on leave with
pay [Doc. 34-2 at ¶ 23, 26');">p. 26]. Mr. Nelson then learned
of plaintiff9;s July 24 email complaint of discrimination
to Human Resources [Id. at ¶ 24]. Thus, Mr.
Nelson suspended the pre-termination process on August 8,
2014, to allow plaintiff time to work through the
accommodation process with Ms. Richter [Doc. 34-2 at ¶
24, p. 27]. Plaintiff was placed on leave without pay
effective August 11');">11, 2014 [Id.].
August 8, 2014, Mr. Nelson received an email from Joe Cagle,
the Material Control Supervisor for the Institute of
Agriculture, complaining about plaintiff9;s performance
[Doc. 34-2 at ¶ 25, p. 28]. Mr. Cagle noted,
“Rarely did I find him doing anything but sitting in a
chair beside the window doing something on his cell phone
which was plugged in a wall outlet” [Id.]. Mr.
Cagle9;s department also received a complaint that
plaintiff spent a lot of time just sitting in the Graduate
Student offices [Id.]. Further, on eight or nine
occasions, Mr. Cagle observed plaintiff sitting in the back
of an empty classroom with the blinds closed and the lights
turned off [Id.].
met with Ms. Richter again on August 14, 2014 and stated that
he wanted an electric, or “bubble, ” car to
transport trash from buildings to dumpsters and that he
wanted his area of responsibility to be reduced [Doc. 34-4 at
¶¶ 18-19]. Ms. Richter directed plaintiff to
provide supplemental medical documentation of his abilities,
because the Accommodation form he previously provided
indicated that he could not do the fundamental components of
his job and there were no possible accommodations to assist
him [Id. at ¶ 24]. After consulting with
plaintiff9;s department, Ms. Richter proposed several
accommodations for plaintiff. First, he was allowed to take
short breaks to take medication or deal with breakthrough
pain so long as the breaks were reasonable in length and the
medications did not impair his ability to do his job [Doc.
34-4 at ¶ 25]. As for his request for a bubble car, Ms.
Richter did not find that necessary as he could move trash
into the large receptacle bag by bag or in smaller
incremental amounts [Id. at ¶ 26]. Finally, Ms.
Richter agreed that plaintiff could use any accumulated
annual leave or earned personal days without pre-approval for
days when he was sick or had a medical appointment but had no
accumulated sick leave [Id. at ¶ 27]. These
proposed accommodations were ultimately agreed to by the
Building Services department on October 6, 2014 [Doc. 34-4 at
¶ 31, p26');">p. 26-27]. Following a meeting on October 9, 2014
with plaintiff, Mr. Nelson advised plaintiff by letter of
October 10, 2014, of the accommodations and requirements for
his return to work on October 13');">13, 2014 [Doc. 34-2 at ¶
26, p. 29].
his return to work, plaintiff was assigned to clean an area
of the Agriculture campus [Doc. 34-2 at ¶ 26, p. 29]. At
this time, plaintiff9;s supervisor, Sheena Rhea, worked
with him for the first two days in order to provide him with
orientation and instruction to the space [Doc. 34-2 at ¶
27]. Following these two days, Ms. Rhea informed Mr. Nelson
that plaintiff “laughed when I tried to talk to him
about his speed and the fact that we did only one half of the
duties he will be responsible for on a daily basis. He was
not concerned in the least” [Doc. 34-2 at ¶ 27;
Doc. 34-3 at ¶¶ 10-11');">11, p. 6');">p. 6]. She further estimated
that plaintiff “accomplished 35-40% of the duties
expected of him” [Id.].
October 16, 2014, Ms. Rhea observed that plaintiff was not
where he had reported himself to be and she found him hiding
in a room with his work shoes off [Doc. 34-2 at ¶ 28;
Doc. 34-3 at ¶ 12, p. 7]. Accordingly, Mr. Nelson issued
plaintiff a final written warning for unsatisfactory work
performance on October 20, 2014, which advised that his
continued failure to perform his assigned work and comply
with break guidelines would result in termination [Doc. 34-2
at ¶ 29, pp. 30-31]. Subsequently, Ms. Rhea informed Mr.
Nelson of further performance deficiencies on October 28 and
29, 2014, where plaintiff had neglected to clean bathrooms,
vacuum floors, and empty trash [Doc. 34-2 at ¶¶
30-31; Doc. 34-3 at ¶¶ 13');">13-15].
suffered a workplace injury by twisting his ankle on October
31, 2014, and he was placed on unpaid administrative leave to
recover [Doc. 34-2 at ¶ 32; Doc. 34-2 at ¶ 18]. He
returned to work on light duty on December 10, 2014,
separating batteries, work which could be performed without
standing or walking [Id. at ¶ 33]. Plaintiff
attended a training class on December 17, 2014, where,
according to Ms. Rhea, “he showed absolutely no
interest in the information and did not participate, ”
he was “disruptive and totally disrespectful to the
department he works for, ” and showed “a total
disregard for his job and the rules that are associated with
his job” [Doc. 34-2 at ¶ 34, p. 32].
had medical appointments on December 16 and 18, 2014, and he
took the entire day off for each. Mr. Nelson again issued
plaintiff a final written warning on December 19, 2014 and
counted those absences as leave without pay [Doc. 34-2 at
¶ 35, p. 33]. Plaintiff was advised that failure to
return to work after a medical appointment or to give advance
notice to his supervisor of an appointment would result in
January 6, 2015, plaintiff was released to work for four
hours of regular duty and four hours of light duty per day
[Doc. 34-2 at ¶ 36]. On January 22, 2015, Ms. Rhea
provided Mr. Nelson with photographs of plaintiff9;s work
area showing that he had not mopped, dirty bathrooms,
overflowing recycling bins, and areas that were clearly
unswept and in disarray [Doc. 34-2 at ¶ 37; Doc. 34-3 at
¶ 20]. Thus, Mr. Nelson issued plaintiff a final written
warning on January 23, 2015, for unsatisfactory work
performance and advised that any further failure of this type
would result in termination [Doc. 34-2 at ¶ 38, p. 34].
On January 25, 2015, plaintiff complained to Human Resources
about this final warning and the December 19, 2014 final
warning regarding attendance by stating that these warnings
violated the terms of his accommodation agreement because he
had sufficient annual leave to cover both absences [Doc. 34-2
at ¶ 39].
January 26, 2015, Mr. Nelson received an email from Wally
Beets, General Superintendent in Air Conditioning Services,
requesting that Mr. Nelson “get someone to clean our
restrooms in the A/C shop area … They are both a
little haired over” [Doc. 34-2 at ¶ 40, p. 35].
Later that afternoon, after plaintiff claimed to have cleaned
the A/C shop area, Ms. Rhea reported that plaintiff
“did not clean the restrooms, recycle, fill soap
dispensers, or clean the water fountains. The floors did not
appear to have been mopped” [Doc. 34-2 at ¶ 41;
Doc. 34-3 at ¶ 22]. Mr. Nelson opined that the pictures
sent by Ms. Rhea “revealed an area that had been
completely neglected over multiple days”
[Id.]. Two days later, Ms. Rhea reported that she
inspected plaintiff9;s entire area of responsibility and
found that he had completely neglected to clean any of his
assigned areas [Doc. 34-2 at ¶ 42; Doc. 34-3 at ¶
point, Mr. Nelson concluded that plaintiff was unwilling to
perform his job duties and he placed Cannon on administrative
leave with pay on January 28, 2015, to initiate the
termination process [Doc. 34-2 at ¶ 43, p. 36]. On
February 2, 2015, Mr. Nelson responded to plaintiff9;s
January 25, 2015 complaints as to the two final written
warnings. Upon review, plaintiff9;s pay was adjusted for
the December 16 and 18, 2014 absences, but the warning was
not rescinded because plaintiff still went to a doctor9;s
appointment and failed to return to work without telling his
supervisor [Doc. 34-2 at ¶¶ 44-45, pp. 37- 39].
Further, Mr. Nelson advised that rescission of the attendance
warning was “inconsequential” and “would
not affect the current situation, which is that we believe
your employment should be terminated based on continued
unsatisfactory work performance … those failures have
resulted in verbal and written complaints from your
a pre-termination hearing on February 10, 2015, Mr. Nelson
consulted with UTK9;s Office of Human Resources and
concluded that “the University had fully met
Cannon9;s disability accommodation demands and that he,
nonetheless, was failing to do his job. I do not know whether
his performance was related to physical limitations or not.
simply knew we had accommodated him and he still was not
performing acceptably” [Doc. 34-2 at ¶¶
46-48]. Mr. Nelson terminated plaintiff9;s employment on
February 11');">11, 2015 [Doc. 34-2 at ¶ 49, p. 40]. Despite
the many issues related to plaintiff9;s attendance, Mr.
Nelson states he did not terminate plaintiff for attendance,
but because his performance “was far below the
professional cleaning standards we expect from our Service
Aides. He rarely completed service on his assigned areas and,
when he did, the quality of service was deficient”
[Doc. 34-2 at ¶¶ 50-51].
Standard of Review
judgment under Rule 56 of the Federal Rules of Civil
Procedure is proper “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 moving party bears the burden of establishing that
no genuine issues of material fact exist. Celotex Corp.
v. Catrett, 477 U.S. 317');">477 U.S. 317, 323 (1986); Moore v.
Phillip Morris Cos., 35');">8 F.3d 335, 339 (6th Cir. 1993).
All facts and all inferences to be drawn therefrom must be
viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574');">475 U.S. 574, 587 (1986); Burchett v.
Kiefer, 937');">310 F.3d 937, 942 (6th Cir. 2002). “Once
the moving party presents evidence sufficient to support a
motion under Rule 56, the nonmoving party is not entitled to
a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F.Supp.
1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477
U.S. 317). To establish a genuine issue as to the existence
of a particular element, the non-moving party must point to
evidence in the record upon which a reasonable finder of fact
could find in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242');">477 U.S. 242, 248 (1986). The genuine issue must
also be material; that is, it must involve facts that might
affect the outcome of the suit under the governing law.
Court9;s function at the point of summary judgment is
limited to determining whether sufficient evidence has been
presented to make the issue of fact a proper question for the
factfinder. Anderson, 477 U.S. at 250. The Court
does not weigh the evidence or determine the truth of the
matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine
issue of material fact.” Street v. J.C. Bradford
& Co., 472');">886 F.2d 1472, 1479-80 (6th Cir. 1989). Thus,
“the inquiry performed is the threshold inquiry of
determining whether there is a need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250.
FMLA enables covered employees to take up to twelve weeks of
leave per year for various purposes specified in the statute,
including caring for a family member with a serious health
condition or for the employee's own “serious health
condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(C) & (D). A “serious health
condition” is defined as “an illness, injury,
impairment, or physical or mental condition that involves (A)
inpatient care in a hospital, hospice, or residential medical
care facility; or (B) continuing treatment by a health care
provider.” 29 U.S.C. § 2611');">11(11');">11). At the expiration