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Cannon v. University of Tennessee

United States District Court, E.D. Tennessee

May 17, 2017

SETH CANNON, Plaintiff,
v.
UNIVERSITY OF TENNESSEE and JIMMY G. CHEEK, in his official capacity, Defendants.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         UTK has 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.

         I. Relevant Facts

         UTK 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].

         It is 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.].[1] 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 punctuality.

[Doc. 34-2 at ¶ 7, p. 15].

         In August 2012, plaintiff advised UTK that he suffered from Moersch-Woltman Syndrome (“MWS”), also known as “Stiff Person Syndrome” [Doc. 34-9].[2] 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].

         Plaintiff had a documented history of problems with his attendance and his performance at UTK and these issues often overlapped.[3] 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].

         On 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. 19-20].

         On 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 buffer” [Id.].

         Jessica 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].

         Plaintiff 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].

         On 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].[5] 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].

         During 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].

         On July 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 move” [Id.].

         Because 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.].

         Also on 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.].

         Plaintiff 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].

         Upon 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.].

         On 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].

         Plaintiff 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].

         Plaintiff 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 termination [Id.].

         On 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].

         On 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 ¶ 23].

         At this 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 customers” [Id.].

         Following 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.

         I 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].

         II. Standard of Review

         Summary 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. Id.

         The 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.

         III. FMLA Claims

         The 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 ...


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