NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0139n.06
Case No. 18-5303
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 20, 2019 CINDY TINSLEY, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE MIDDLE DISTRICT OF CATERPILLAR FINANCIAL SERVICES, ) TENNESSEE CORP. ) Defendant-Appellee. )
BEFORE: MOORE, CLAY, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. This case is about an employee,
Cindy R. Tinsley, whose distaste for her supervisor’s managerial decisions was so severe—
particularly the fact that he permitted her co-workers to bounce stress balls off the ground—that it
triggered her post-traumatic stress disorder (“PTSD”). Tinsley asked her employer, Caterpillar
Financial Services (“Caterpillar”), to assign her to a new supervisor or to permit her to take medical
leave. Caterpillar approved eighteen weeks of intermittent medical leave for Tinsley, but denied
her request for a new supervisor or additional leave. Tinsley eventually resigned, and filed a
lawsuit against Caterpillar.
In her lawsuit, Tinsley alleges that the company discriminated against her in violation of
the Americans with Disabilities Act (“ADA”) by failing to accommodate her disability and
constructively discharging her. The record does not support these claims, though, because she is Case No. 18-5303, Tinsley v. Caterpillar
not disabled under the ADA. Tinsley argued below and repeated at oral argument that her PTSD
limited only her ability to perform the major life activity of “work,” but she has not shown that her
PTSD substantially limited her from performing a class of jobs or broad range of jobs, as is
required by the ADA. She is thus not eligible for ADA relief. We AFFIRM the district court’s
entry of summary judgment in favor of Caterpillar on those claims.
Tinsley also claims that she received a negative performance review and was placed on an
improvement plan in retaliation for taking leave pursuant to the Family Medical Leave Act
(“FMLA”). Because receiving a negative performance review and being placed on an
improvement plan would dissuade a reasonable employee from taking FMLA leave, and because
the adverse employment action occurred just over two months after the protected activity, Tinsley
has satisfied her prima facie showing for her retaliation claim. Caterpillar is required, therefore,
to provide a legitimate, non-discriminatory reason for the adverse employment action. Because
Caterpillar did not provide such a reason before this Court, we REMAND to the district court to
determine whether Tinsley may continue with her retaliation claim.
I. BACKGROUND
Tinsley worked for Caterpillar from 1997 until she tendered her resignation effective
January 11, 2016. Beginning as a paralegal, she eventually moved to the business side of the
company and was promoted to a Business System Analyst III position in October 2013. In this
new role, she was paired with a group of other employees on the Four Pillars Project (“FPP”). Her
immediate supervisor was Amy Clendenon, the FPP team leader, who in turn reported to Paul
Kaikaris. Tinsley apparently worked without incident on the FPP team for two years. That
changed in April 2015. 1
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On April 15, Tinsley emailed Kaikaris and asked to be removed from the FPP because her
family obligations had changed and her “many [work] responsibilities . . . [were] causing [her] to
be stressed beyond what [she was] physically able to handle.” Those factors, according to Tinsley,
“negatively impact[ed her] work, sleep and overall health.” In response to the email, Kaikaris met
with Tinsley and said he would see what he could do to take work off her plate.
On April 21, Tinsley submitted a doctor’s note from her personal physician indicating that
she “should be excused from work [between April 21 and April 24] because of [a] confidential
medical condition.” Tinsley took those days off and returned to work the following Monday,
April 27. This period of leave—which Caterpillar represented at oral argument was taken pursuant
to FMLA—forms the basis of Tinsley’s FMLA retaliation claim. On May 4, Kaikaris and
Clendenon met with Tinsley and reassigned some of her projects to another employee in response
to her concerns. Tinsley later wrote in an email to Human Resources that this reassignment
“greatly reduced” her stress.
A little over two months later, in early July, Kaikaris and Clendenon met with Tinsley
informally to explain that they were concerned with her recent performance at work: specifically,
that she was not following the prescribed methodology for completing her work, the quality of her
work was subpar, and she had been leaving work early without prior approval. Tinsley was
defensive at this meeting and unreceptive to the issues raised by her two supervisors.
About a week later, Kaikaris and Clendenon met with Tinsley again, this time for her
formal mid-year review. Based on the same issues raised in the informal meeting, Tinsley received
a rating of “Did Not Meet Performance Expectations.” Despite the negative rating, Kaikaris noted
in the review that he believed Tinsley’s performance issues were an “anomaly” and she could
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“return to an expected level of performance by year-end” with the implementation of an action
plan.
On August 14, Kaikaris provided Tinsley with a Performance Improvement Plan (“PIP”),
as is required when an employee receives the “Did Not Meet Performance Expectations” rating.
Tinsley refused to sign the PIP because she “disagreed with it” and did not feel that she had been
“assessed accurately.” She believed that Kaikaris provided her a poor rating only because she had
complained to him during a routine meeting in early July that she did not approve of her co-workers
bouncing stress balls off the ground.
After she refused to sign her PIP, Tinsley sent two emails to Human Resources regarding
the stress of her position, her purportedly inaccurate midyear review, and the “hostile work
environment” created by her co-workers’ “horseplay” (e.g., bouncing the stress balls off the
ground). In the first email, sent August 17, Tinsley expressed that she was concerned that Kaikaris’
“demeanor towards [her] changed after” the meeting in which she complained about the bouncing
stress balls and that she did not “feel comfortable continuing to work under [Kaikaris’]
supervision.” Accordingly, she asked to “be restored to [her] former support manager role in the
NABC Special Accounts group at the earliest opportunity.” In the second email, sent two days
later, Tinsley explained that she “could not even begin to comprehend how [she] could possibly
continue” to work in the FPP based on the stress she felt from “unreasonable deadlines” and
because Kaikaris announced that the FPP employees’ work hours and responsibilities would be
enlarged for a special event. These factors caused “complete mental and emotional exhaustion,”
according to Tinsley, and were the reason why her doctor had provided her with a note to take time
off in April.
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Despite the picture of overwhelming stress Tinsley painted, she also outlined in her second
email to Human Resources the ways in which the company had been working with her to
accommodate her requests: specifically, that she met with Kaikaris several times over the
preceding months regarding her concerns, that he promised to make changes to her schedule and
work flow, and that he “greatly reduced” her stress level by reassigning some of her projects to
other team members in May. Moreover, Human Resources investigated Tinsley’s allegations,
speaking with several senior leaders, Kaikaris’ manager, and the Chief Information Officer, but
ultimately concluded that Tinsley’s mid-year rating and workload were “appropriate” and that
“appropriate action had been taken.”
After this round of complaints and responses, Tinsley began a practice of submitting
doctor’s notes and successive requests for medical leave based on “mental and emotional duress
brought on by an over-excessive workload, unrealistic deadlines, a hostile work environment and
a manager’s reckless indifference to my mental and emotional well-being.” Following her doctor’s
advice, she took medical leave between September 2 and October 7. On October 6, though, her
doctor cleared her to return to work—“at full capacity”—in a letter that stated:
I’ve been following [Tinsley] for the last 4-6 weeks for exacerbation of her post- traumatic stress disorder. She has been working with a psychologist by going to counselling sessions. At this time, she has stabilized medically. In my opinion she is able to return to work effective October 7, 2015 and function at full capacity. However, I strongly recommend her working in a different work environment and specifically under a different manager. She describes a work environment and management style that was insensitive and at times hostile. To return to such an environment would put her [at] significantly increased risk for another exacerbation.
On October 7, Tinsley reported back to work and immediately met with a Human
Resources employee to complain again about her work environment and to request a new
supervisor. When questioned about options she was comfortable with, Tinsley told Human
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Resources that she would be willing to continue working in the same position as long as it was
under a different manager with whom she was more familiar. In lieu of reassigning her to a new
supervisor, however, the company approved her request to take an additional eight weeks of
medical leave, starting on October 9. Including this time off, the company had provided her with
eighteen weeks of FMLA leave—six weeks beyond the statutory maximum, see 29 U.S.C.
§ 2612(a)(1)(D). Tinsley took the extra eight weeks of medical leave, plus more.
Beginning in the middle of December, the record conveys a pattern—the minute details of
which are not important to the resolution of this case—wherein Tinsley requested additional
medical leave and a new supervisor, and Caterpillar denied those requests. Around this time as
well, Tinsley filed a “Charge of Discrimination” with the Tennessee Human Rights Commission
alleging that she was “subjected to a hostile environment by supervision because of [her] disability
and complaints of discrimination and harassment,” and making clear that the “only”
accommodations she requested from her employer were “additional time off while under [her]
doctor’s care and to report to a different supervisor.”
On January 7, 2016, Caterpillar put an end to Tinsley’s requests, informing her that it could
not accommodate her “confidential” medical condition and that it did not believe that her request
for a transfer to a different supervisor was necessary or a reasonable accommodation. The next
day, Tinsley again asked for additional leave, to which human resources responded that she was
expected to return to work. Tinsley replied that the company had “given [her] no other alternative,
[and to] please process [her] retirement effective 1/11/2016.” The company processed her
retirement according to her request.
Tinsley filed a complaint against Caterpillar in district court on June 14, 2016, alleging that
Caterpillar violated the ADA by not providing her with reasonable accommodations and retaliated
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against her for making an FMLA claim. Following discovery, which included depositions of
Tinsley, Kaikaris, and a Caterpillar Human Resources representative, Caterpillar filed a motion
for summary judgment. Upon review of the evidence, the district court found that Tinsley was not
disabled pursuant to the ADA because she is not substantially impaired from working in a broad
category of jobs, and that Tinsley did not provide sufficient evidence to maintain her retaliation
claim. Accordingly, the district entered summary judgment in favor of Caterpillar on both of
Tinsley’s claims. Tinsley filed a timely appeal of that order.
II. ANALYSIS
Standard of Review
We review a district court’s grant of summary judgment de novo. Gillis v. Miller, 845 F.3d
677, 683 (6th Cir. 2017). To succeed on summary judgment, the movant must show it is entitled
to judgment as a matter of law by identifying the evidence “which it believes demonstrate[s] the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)). To avoid entry of judgment, the nonmovant “must set forth
specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). “The mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Id. at 247-48 (emphases in original).
ADA Claim
Tinsley argues that Caterpillar violated the ADA by not providing her with reasonable
accommodations for her disability. As the district court correctly held, however, Tinsley is not
disabled for purposes of the ADA because she is not substantially limited from working in a class
or broad range of jobs. “The ADA prohibits discrimination by covered entities, including private
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employers, against qualified individuals with a disability.” Sutton v. United Air Lines, Inc.,
527 U.S. 471, 477 (1999), superseded on other grounds by statute as stated in Verhoff v. Time
Warner Cable, Inc., 299 F. App’x 488, 494 (6th Cir. 2008). The ADA defines a disability, among
other things, as “a physical or mental impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1)(A). The ADA and this Court have recognized “work” as a major
life activity. Id. at § 12102(2)(A), Swanson v. Univ. of Cincinnati, 268 F.3d 307, 317 (6th Cir.
2001). Although Tinsley has a disability—PTSD—she has not demonstrated that her disability
“substantially limits” her from “work,” as that term is understood vis-à-vis the ADA.
This Court has previously held that to be substantially limited from working––and thus
eligible for ADA protection––an individual must be “significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various classes as compared to the average
person having comparable training, skills and abilities.” Swanson, 268 F.3d at 317 (citation
omitted). Following this Court’s decision in Swanson, Congress enacted the ADA Amendments
Act of 2008, which relaxed the definition of “substantially limited” and noted that establishing a
qualifying disability is not meant to be a demanding standard. See 42 U.S.C. § 12102(4)(A) (“The
definition of disability in this chapter shall be construed in favor of broad coverage of individuals
under this chapter.”); 29 C.F.R. § 1630.2(j)(1)(ii) (“An impairment need not prevent, or
significantly or severely restrict, the individual from performing a major life activity.”); ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (noting that cases interpreting the
ADA “have narrowed the broad scope of protection intended to be afforded by the ADA”).
Following the Amendments, the Code of Federal Regulations no longer specifies the requirements
for concluding that an individual’s disability impacts the major life activity of working, as it had
at the time Swanson was decided. See Swanson, 268 F.3d at 317 (quoting 29 C.F.R.
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§ 1630.2(j)(3)(i) and explaining that a disability must restrict a person from performing “a broad
range of jobs”). Additionally, due to the broader definition of “substantially limited” under the
Amendments, the interpretative guide produced by the Equal Employment Opportunity
Commission (“EEOC”) notes that the major life activity of working “will be used in only very
targeted situations” to determine whether an individual is disabled. 29 C.F.R. § 1630 Appendix.
In such “targeted situations,” however, the EEOC has largely endorsed the pre-
Amendments analysis for determining whether a person’s claimed impairment sufficiently impacts
the major life activity of “working.” Specifically, the EEOC’s interpretive guide explains that an
individual who asserts that she is disabled because she is unable to perform the major life activity
of “working” must still show that “the impairment substantially limits . . . her ability to perform a
class of jobs or broad range of jobs in various classes.” Id. The EEOC further states that
“[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job
is not sufficient to establish that a person is substantially limited in the major life activity of
working.” Id. Thus, to the extent the Amendments have altered the scope of the ADA’s
protections, a plaintiff who asserts that her impairment substantially limits the major life activity
of “working” is still required to show that her impairment limits her ability to “perform a class of
jobs or broad range of jobs.” Id.; see also Mancini v. City of Providence, 909 F.3d 32, 40 & 42
n.6 (1st Cir. 2018) (noting the Amendments applied and that in order to show the plaintiff was
substantially limited in performing the major life activity of working, he was required to show it
limited his “ability to perform a class of jobs or broad range of jobs” (internal quotation marks
omitted)); Carothers v. County of Cook, 808 F.3d 1140, 1147–48 (7th Cir. 2015) (same).
As applied to the case before us, Tinsley has asserted that her impairment (PTSD) impacted
only the major life activity of working. Tinsley’s counsel reiterated this at oral argument. Thus,
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we must now examine whether Tinsley’s PTSD sufficiently limited her ability to perform a class
of jobs or a broad range of jobs. The evidence demonstrates that it did not. As the district court
correctly pointed out, the record is replete with undisputed evidence showing that Tinsley’s issues
stemmed directly from Kaikaris’ management style as opposed to the responsibilities of a broad
range of jobs. The clearest example of this is when Tinsley told Human Resources that she would
be able to continue in the same position so long as she was under the direction of a different
supervisor because her disability was triggered by “the way [Kaikaris] managed . . . with all the
ball bouncing.” There are several other pieces of evidence pointing to the same thing. For
instance, on August 19, when Tinsley emailed Human Resources to request a new position, she
explained that “the work itself was not the primary issue.” And in the Charge of Discrimination
she filed with the Tennessee Human Rights Commission, Tinsley wrote that the company could
have accommodated her disability by switching her supervisor. Last, her doctor cleared her to
return to work at one point “at full capacity,” suggesting only that the company switch her
supervisor to alleviate any medical concerns. Tinsley’s diagnosis does not limit her ability to work
a broad class of jobs; rather, it relates solely to her ability to work under a specific manager.
Accordingly, she is not “disabled” pursuant to the ADA and was thus not entitled to a reasonable
accommodation of additional time off or a transfer.
In response, Tinsley asserted at oral argument that her PTSD substantially limited her
ability to perform a broad range of other, high-stress positions. However, the record evidence does
not support this conclusion. “A class of jobs may be determined by reference to the nature of the
work that an individual is limited in performing (such as commercial truck driving . . .) or by
reference to job-related requirements that an individual is limited in meeting (for example, jobs
requiring repetitive bending . . .).” 29 C.F.R. § 1630 Appendix.
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For example, if a person whose job requires heavy lifting develops a disability that prevents him or her from lifting more than fifty pounds and, consequently, from performing not only his or her existing job but also other jobs that would similarly require heavy lifting, that person would be substantially limited in working because he or she is substantially limited in performing the class of jobs that require heavy lifting.
Id. In the current case, although Tinsley would, theoretically, face similar limitations in another
stressful position, she has consistently related her stress level to Kaikaris’ specific management
style, not to the requirements of the job.
Importantly, Tinsley’s physician cleared Tinsley to return to work without restrictions. The
only recommendation that Tinsley’s physician made––to have Tinsley transfer to a different
supervisor––related to her stress level under Kaikaris specifically. This is further illustrated by
the fact that, when offered the same position under a different supervisor, Tinsley agreed that she
would be able to perform the job duties. Thus, Tinsley’s limitations were more accurately a
product of the “unique aspect” of her “single specific job,” i.e., working as an analyst under
Kaikaris’ particular management style. Id. Although we can certainly theorize a case in which an
employee’s disability actually limited her from engaging in a broad range of similarly high-stress
positions, Tinsley has not pointed to any record evidence permitting us to make that necessary
inference. See Carothers, 808 F.3d at 1148 (concluding that, because the record evidence indicated
only that the plaintiff could not work with juvenile children, rather than children in general, the
plaintiff was not disabled under the ADA). Because Tinsley has consistently phrased her limitation
in terms of Kaikaris’ specific management style, she has not shown that she was substantially
limited in performing “either a class of jobs or broad range of jobs in various classes.” 29 C.F.R.
§ 1630 Appendix.
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Finally, Tinsley contends that “[t]o leave the District Court’s opinion in place would be to
allow employers the ability to deny employees the recognized accommodation of job/shift
assignments and then successfully defend legal claims by arguing the employee was only restricted
from performing one job in their employment.” Appellant Br. at 19–20. This argument ignores
the fact that Tinsley has articulated her claim only in terms of how it impacts her ability to perform
the major life activity of working. Although Tinsley could have conceivably articulated her claim
in terms of other, non-work-related life activities, Tinsley has identified only the major life activity
of working. As both our precedent and the EEOC’s interpretative guide show, in the “targeted
situation” where an employee asserts that her impairment substantially impacts the major life
activity of working, that employee must also show that her impairment prevented her from
performing a class of jobs or broad range of jobs in various classes. For the reasons discussed
above, Tinsley has failed to make that showing; thus, she is not disabled under the ADA.
FMLA Retaliation
Tinsley next argues that Caterpillar gave her a negative mid-year review and placed her on
a performance improvement plan as retaliation for taking FMLA leave. To move forward on her
claim, she must make the following prima facie case: (1) she availed herself of a protected right
under the FMLA, (2) she was adversely affected by an employment decision, and (3) there was a
causal connection between the exercise of the right and the adverse employment decision. Skrjanc
v. Great Lakes Power Serv. Co., 272 F.3d 309, 314 (6th Cir. 2001). Tinsley has made this prima
facie showing. First, the parties do not dispute that she had a right to take FMLA leave in
April 2015. Second, when drawing all reasonable inferences in favor of Tinsley, her negative
review and performance improvement plan—which itself stated “could result in reassignment,
demotion, and/or disciplinary action, up to and including discharge”—would have dissuaded a
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reasonable worker from making a similar request. It is therefore an adverse employment action.
See Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775–76 (6th Cir. 2018) (quoting Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Indeed, Caterpillar should be aware of
this. Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594–96 (6th Cir. 2007) (concluding
that a paid administrative leave and a 90-day improvement plan was sufficiently adverse to
establish a prima facie case of race retaliation). Third, we have previously found that, if the adverse
employment action closely follows the protected activity, then temporal proximity alone is
sufficient to satisfy the causation prong, Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 529 (6th
Cir. 2008), including time periods of just over two months, Rogers, 897 F.3d at 776–77, two-to-
three months, Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283–84 (6th Cir. 2012), and three
months, Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007). Tinsley received her adverse
employment action just over two months after she initially took FMLA leave. Satisfying all three
elements, she has made her prima facie showing.
When a plaintiff makes her prima facie showing, the defendant must respond by clearly
articulating a legitimate non-discriminatory reason for the adverse employment action. See
Bryson, 498 F.3d at 570. Caterpillar has not addressed this issue in its appellate briefing. In such
situations, remand is appropriate. Randolph v. Ohio Dep’t of Youth Serv., 453 F.3d 724, 737 n.4
(6th Cir. 2006). We thus remand to the district court to examine whether Tinsley may move
forward with her FMLA retaliation claim.2
2 Tinsley also argues, in curt treatment, that the district court “erred in finding as a matter of law that [her] forced retirement claim should be dismissed.” She cites a single case—Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099 (6th Cir. 2008)—for the proposition that Caterpillar failed to accommodate her disability. But, unlike the plaintiff in Talley, Tinsley is not disabled pursuant to the ADA. Her constructive discharge claim thus fails. - 13 - Case No. 18-5303, Tinsley v. Caterpillar
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s order granting summary
judgment in favor of Caterpillar on Tinsley’s ADA and forced retirement claims, but REMAND
for further consideration of Tinsley’s FMLA retaliation claim.
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