FILED Dec 22, 2017 DEBORAH S. HUNT, Clerk NOT RECOMMENDED FOR PUBLICATION File Name: 17a0700n.06
No. 17-5355
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MALINDA COOLEY, ) ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE EAST TENNESSEE HUMAN RESOURCE ) AGENCY, INC., ) OPINION ) Defendant-Appellee. )
BEFORE: CLAY, GIBBONS, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Malinda Cooley appeals an order granting her former
employer’s motion for summary judgment on her claims under the Americans with Disabilities
Act as amended (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq. In granting summary judgment on her ADA claim, the
district court concluded that no reasonable jury could find that Cooley was qualified for her job
as a bus driver. Cooley v. E. Tenn. Human Res. Agency, Inc., 243 F. Supp. 3d 941, 949–50 (E.D.
Tenn. 2017). As to her FMLA claim, the district court concluded that Cooley had not met her
burden of establishing that her employer’s stated, nondiscriminatory reason for firing her was
pretextual. Id. at 948–49. For the reasons that follow, we affirm the district court’s order in both
respects. No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
I
Plaintiff Malinda Cooley worked for Defendant East Tennessee Human Resource
Agency, Inc. (“ETHRA”) from March 14, 2006, until August 27, 2015, when she was fired.
While employed, she drove a 16-passenger ETHRA van and transported ETHRA clients,
including elderly and disabled passengers. Because her job required assisting some of these
passengers, including those in wheelchairs, in getting into and out of the van, the job required the
ability to lift up to fifty pounds without assistance.
Cooley’s job also required her to hold a driver’s license with an endorsement to transport
clients. Cooley had the required license, a commercial driver’s license (CDL). One of the
requirements imposed on a CDL driver is that if she suffers a job-impairing injury, she has to be
certified as physically qualified to return to work. 49 C.F.R. § 391.45(c). The certification
comes from a medical examination that must be performed by someone on the National Registry
of Certified Medical Examiners of the U.S. Department of Transportation (“DOT”). Id.; 49
C.F.R. § 391.43.
Cooley had a history of numerous back ailments. Those ailments worsened in February
2015, when she slipped on ice and fell in a non-work-related incident. Within months of that
accident, Cooley requested leave under the FMLA to undergo back surgery. ETHRA granted her
request.
Cooley’s leave was set to expire on August 12, 2015. As of that date, she had no
available accrued leave of any kind. But her personal physician did not clear her to return to
work until August 24, 2015, and only with the following restrictions on her working conditions:
“[n]o pushing, pulling or lifting greater than 30lbs.” According to Dr. Hall’s instructions,
Cooley was cleared to return to work without restrictions after October 5, 2015.
2 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
Although Cooley exhausted her full twelve weeks of FMLA leave on August 12, 2015, in
accordance with Dr. Hall’s instructions, she did not return to work at that time. On August 25,
2015, Cooley faxed the following letter to ETHRA:
To whom it may concern,
I, Malinda Cooley, am requesting that my employer, East Tennessee Human Resource Agency, provide me a reasonable accommodation of the following: not doing manual wheelchairs which include pushing, pulling, tugging or lifting anything over the weight of thirty pounds until after October 5, 2015. This accommodation is being requested due to an intensive back surgery on June 3, 2015; time off approved by said agency.
I, Malinda Cooley, will be able to work full time and do electric wheelchairs and I am willing to work with my employer to accommodate my reasonable request in any way possible.
Because she was attempting to return to work from a job-impairing injury, ETHRA required
Cooley to first undergo a medical examination and provide a fitness-for-duty certification. To
conduct Cooley’s examination, ETHRA hired Dr. John McElligott, M.D., who is on the DOT’s
National Registry of Certified Medical Examiners.1
On August 27, Cooley underwent her examination. She admitted that she was taking
hydrocodone, a narcotic-pain medication. Based on this admission, Dr. McElligott deemed her
unfit to return to work. Specifically, Dr. McElligott found that safety-sensitive issues were
present, Cooley was at risk of causing injury to herself or other employees, and Cooley did not
meet OSHA standards for employment as described in 29 U.S.C. § 654. Having made these
findings, he did not recommend her for employment. After her examination, Cooley delivered to
ETHRA the paperwork showing she had failed.
1 Cooley was familiar with this process. She had used FMLA leave on at least two prior occasions. On both occasions, before being allowed to return to work, she was seen by Dr. McElligott, who declared her fit for duty as a driver, and she went back to work immediately without incident. 3 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
When ETHRA received Cooley’s exam results, Gary Holiway, ETHRA’s executive
director, was informed that Cooley had failed and could not return to work. As executive
director, Holiway had sole discretion to terminate an ETHRA employee. Upon receiving news
of Cooley’s examination failure, Holiway decided to fire her. Cooley’s separation notice states
that she was discharged because she “[c]annot pass fitness for duty test.”
After delivering her examination results to ETHRA, Cooley was driving home when she
received a call from her immediate supervisor, Melissa Norris. Norris asked Cooley to return to
the office. When she returned, Cooley was met by Norris, ETHRA’s Human Resource Director
(Dee Norman), and ETHRA’s Transportation Director (Mike Patterson). Cooley brought with
her the August 25 letter containing her request for various physical, working restrictions. During
this meeting, Cooley was given her separation notice. Cooley testified that she was crying, her
ears started ringing, and she was upset. She told the ETHRA employees that she failed her
examination because she was still on hydrocodone and that she was only taking the medication at
night and was being weaned off of it. The ETHRA employees told her that she could not return
to work because she had failed her exam. Cooley left in a highly emotional state.
II
On October 25, 2015, Cooley sued ETHRA in the United States District Court for the
Eastern District of Tennessee, asserting claims for FMLA interference and retaliation. After
receiving her right-to-sue letter from the EEOC, she filed an amended complaint on April 19,
2016, adding a claim for failure to accommodate under the ADA. After conducting discovery,
the parties filed cross-motions for summary judgment. On March 20, 2017, the district court
granted in full ETHRA’s motion for summary judgment and denied Cooley’s. Cooley filed a
timely notice of appeal, but she appealed only the district court’s grant of ETHRA’s motion for
4 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
summary judgment. As to her FMLA claims, Cooley appeals only the district court’s decision
on her retaliation claim.
III
A. Standard of Review
We review a district court’s grant of summary judgment de novo. Williams v. AT&T
Mobility Servs., LLC, 847 F.3d 384, 391 (6th Cir. 2017). Summary judgment 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). “We must view all evidence in the light
most favorable to the nonmoving party.” Williams, 847 F.3d at 391. That said, unsupported
allegations cannot defeat a properly supported motion for summary judgment. Fed. R. Civ. P.
56(c)(1). Nor will a mere “‘scintilla’ of evidence in support of the non-moving party’s position”
defeat summary judgment; “rather, the nonmoving party must present evidence upon which a
reasonable jury could find in her favor.” Tingle v. Arbors at Hilliard, 692 F.3d 523, 529 (6th
Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
B. Discussion
1. Cooley’s ADA Claim
The ADA prohibits discriminating against qualified employees with a disability on
account of that disability. An employer discriminates under the ADA when it fails to “mak[e]
reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(a); Williams, 847 F.3d at 391.
To be “qualified” under the ADA, a disabled employee must be able to “perform the essential
functions of” her job “with or without reasonable accommodation.” 42 U.S.C. § 12111(8); see
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th Cir. 2015) (en banc). If a disabled
5 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
employee requires an accommodation, she must identify an accommodation and show both that
it is reasonable and that it will enable her to perform the essential functions of her job.
Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 202 (6th Cir. 2010).
Cooley admits that when she was fired, she was unable to perform an essential function
of her job—passing her fitness-for-duty examination. She argues only that she could have
passed the exam with a reasonable accommodation, and that ETHRA’s failure to provide that
accommodation violated the ADA. As explained below, however, Cooley has failed to identify a
reasonable accommodation that would have enabled her to pass her exam. Thus, she is not a
qualified individual under the ADA, and her claim fails.2
i. Cooley failed to show that she could pass her fitness-for-duty examination with the work restrictions she requested.
Cooley claims that prior to undergoing her fitness-for-duty examination, she asked for a
reasonable accommodation—a change in her job duties to accommodate her pushing, pulling,
tugging, and lifting restrictions. Her request is outlined in the fax that she sent to ETHRA on
August 25, 2015, two days before she was discharged. In the fax, she requested
that [her] employer . . . provide [her] a reasonable accommodation of the following: not doing manual wheelchairs which include pushing, pulling, tugging or lifting anything over the weight of thirty pounds until after October 5, 2015.
But Cooley failed to show that this accommodation would have “permit[ted] her to effectively
perform the essential functions of her job.” E.E.O.C. v. Ford, 782 F.3d at 763. If ETHRA had
granted her the accommodations outlined in her fax, she nonetheless would have failed her
fitness-for-duty exam because her working restrictions did nothing to address the reason she
failed the exam—her narcotic usage. Cooley’s narcotic usage rendered her an unsafe driver.
2 Because Cooley has failed to establish that she is a qualified individual, we do not address the sufficiency of her disability evidence. 6 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
Pushing, pulling, tugging and lifting restrictions would not have alleviated her narcotic usage.
Thus, she failed to show that she was qualified for her job with these accommodations.3
ii. Cooley failed to show that additional unpaid leave would have been a reasonable accommodation in this case.
Perhaps recognizing her inability to show that her only requested accommodation could
have enabled her to pass her fitness-for-duty examination, Cooley argues that she was qualified
for her position with an alternate accommodation, additional unpaid leave. She asserts that even
though she did not ask for this, if ETHRA had engaged in the “interactive process” sometimes
required by the ADA, the parties could have settled on this accommodation.
Cooley’s reliance on the ADA’s interactive process puts the cart before the horse. The
ADA’s regulations indicate that “[t]o determine the appropriate reasonable accommodation [for
a given employee,] it may be necessary for the [employer] to initiate an informal, interactive
process with the [employee]” to determine how an employee’s disability limits her ability to
work and to identify appropriate reasonable accommodations. Kleiber v. Honda of Am. Mfg.,
Inc., 485 F.3d 862, 871 (6th Cir. 2007) (alterations in original) (quoting 29 C.F.R.
§ 1630.2(o)(3)). But the failure to engage in the ADA’s interactive process “is actionable only if
it prevents identification of an appropriate accommodation for a qualified individual.” E.E.O.C.
v. Ford, 782 F.3d at 766. As we have previously explained, when “the employee fails to create a
genuine dispute of material fact that a reasonable accommodation would have allowed her to
perform the essential functions of her job, she cannot survive summary judgment on an
interactive-process claim.” Williams, 847 F.3d at 395. Thus, for Cooley to succeed on her ADA
3 Cooley argues that there is a disputed question of fact as to when she requested accommodations and that if the district court properly construed the evidence in her favor in rendering its summary judgment decision, a triable issue of fact remained as to when Ms. Cooley made such requests. But Cooley misses the point. Assuming she requested these accommodations prior to her employment termination, as we have done here, she cannot show she was qualified for her position with these accommodations. 7 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
claim, she must first show that additional unpaid leave would have been a reasonable
accommodation for ETHRA to offer. She cannot do so for two reasons.
First, Cooley’s own deposition testimony proves that additional unpaid leave was not a
reasonable accommodation in this case. When a plaintiff admits that she would not have
accepted an accommodation, she cannot meet her burden of showing that that accommodation
would have been reasonable. See Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d
1222, 1231–32 (10th Cir. 2009) (plaintiff’s testimony that “she would not have accepted [a
particular accommodation] as a reasonable accommodation suggests that, even if the [employer]
had participated in the interactive process and offered her [that accommodation], she would have
refused the offer.”); see also Stevens v. Rite Aid Corp., 851 F.3d 224 (2d Cir. 2017), cert. denied,
2017 WL 3456814 (U.S. Oct. 16, 2017) (holding accommodation unreasonable as a matter of
law where plaintiff “offered no evidence that he requested, considered, or was open to” the
accommodation he later identified). During her deposition, Cooley conceded that after twelve
weeks of leave without pay, she was not in a financial position to accept additional unpaid leave.
Cooley conceded that this “wasn’t an option” because she “had been out of work for three
months and had absolutely no money coming in.” Her admission shows that even if ETHRA had
offered additional unpaid leave, she would not have accepted it. See Barber, 562 F.3d at 1231–
32. Therefore, this accommodation was not a reasonable one.
In opposing ETHRA’s summary judgment motion, Cooley submitted an affidavit that
walked back her deposition testimony. In her affidavit, she stated that if ETHRA had advised
her that her only option to avoid immediate termination was to take additional leave without pay,
she would have taken it. But Cooley’s claim is not revived by her post hoc attempt to retract her
admission. We have long held that a party “may not create a factual issue by filing an affidavit,
8 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
after a motion for summary judgment has been made, which contradicts her earlier deposition
testimony.” Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986). “A directly
contradictory affidavit should be stricken unless the party opposing summary judgment provides
a persuasive justification for the contradiction.” Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d
899, 908 (6th Cir. 2006).
Here, Cooley’s affidavit directly contradicted her deposition testimony, and she failed to
provide a persuasive justification for the contradiction. In her deposition, Cooley was
specifically asked to confirm that at the time of her termination, additional leave without pay
“wasn’t an option,” and she answered “that’s correct.” Not only was this testimony unequivocal,
but Cooley also testified as to why further leave without pay was not an option: “[b]ecause [she]
had been out of work for three months and had absolutely no money coming in.” In her
affidavit, Cooley claimed that she would have accepted this accommodation if it were her only
option. These statements directly contradict one another. Having testified that leave without pay
was not an option due to her financial circumstances, she then attempted to claim that a
nonoption would have actually been an option if her employer presented it in a different way—
i.e, as an ultimatum. This direct contradiction cannot create a factual dispute. See Bush v.
Compass Grp. USA, Inc., 683 F. App’x 440, 448 (6th Cir. 2017) (refusing to allow party’s own
affidavit to create dispute of fact where it “directly contradicted his deposition testimony in a key
way”). After setting aside the impermissible contradictions in her affidavit, Cooley’s testimony
proves that additional unpaid leave was not a reasonable accommodation.
Even had Cooley not admitted that additional unpaid leave was not an option for her, her
claim would fail for another, independent reason: she failed to provide ETHRA with a certain or
credibly proven end to her leave. Although medical leave can sometimes constitute a reasonable
9 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
accommodation under the ADA, see Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775,
783 (6th Cir. 1998), our case law is clear that when the proposed accommodation is an extension
of a prior significant period of leave, the plaintiff must have demonstrated a clear prospect for
recovery. Williams, 847 F.3d at 394. “[T]he relevant inquiry is whether [the employee] showed
[her employer] a certain or credibly proven end to the leave.” Maat v. Cty. of Ottawa, Mich., 657
F. App’x 404, 413 (6th Cir. 2016) (internal quotation marks omitted); see Robert v. Bd. of Cty.
Comm’rs of Brown Cty., Kans., 691 F.3d 1211, 1218 (10th Cir. 2012) (“The employee must
provide the employer an estimated date when she can resume her essential duties.”). A “vague
estimate” of the date that an employee can return to her job is insufficient. Walsh v. United
Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000).
Thus, for an additional leave of absence to be a reasonable accommodation under the
ADA, the employee must, at a minimum, provide the employer with an estimated, credible date
when she can resume her essential duties. See Maat, 657 F. App’x at 413; Robert, 691 F.3d at
1218 (“Without an expected end date, an employer is unable to determine whether the temporary
exemption is a reasonable one.”) Cooley provided ETHRA with no such date. The only
statement that Cooley points to is her deposition testimony that during her termination meeting
she told ETHRA that she was taking hydrocodone only at night and was being weaned off of it
by her physician. But this statement did not provide ETHRA with a “certain or credibly proven
end” to her additional leave. See Maat, 657 F. App’x at 413 (stating that employee’s “hope that
her leave of absence would be over in a few weeks is of little help”); E.E.O.C. v. Ford, 782 F.3d
at 763–64 (“An employee’s unsupported testimony that she could perform her job functions . . .
does not preclude summary judgment, for it does not create a genuine dispute of fact.”).
Cooley’s statement failed to provide ETHRA with even an estimated end to her leave because it
10 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
contained no timeframe for how long her weaning-off process would take. She provided no
assurance whatsoever as to when she would have been able to return to work. No reasonable
jury could find that Cooley’s single, optimistic statement in her termination meeting provided
ETHRA “a certain or credibly proven end to the leave.” Maat, 657 F. App’x at 413.
The absence of evidence provided to ETHRA at the time of Cooley’s termination
regarding the length of her leave or her prospect for recovery differentiates this case from Cehrs,
where we found that a reasonable jury could conclude that an employer was required to grant
further leave as an accommodation. In Cehrs, an employee who was on an eight-week leave of
absence for treatment for her psoriasis asked her employer to extend her leave by one month
because her physician indicated that she needed another treatment. 155 F.3d at 778. Unlike in
the present case, the plaintiff’s request in Cehrs was accompanied by a physician’s note
estimating that she could return to work on a part-time basis by a defined date. Id. Thus, the
employer was presented with a request for a definite and relatively short leave, accompanied by a
physician’s note evidencing a reasonable prospect of recovery.
Since Cehrs, we have held that even “[a] physician’s estimate of a return date alone does
not necessarily indicate a clear prospect for recovery.” Williams, 847 F.3d at 394; see also Maat,
657 F. App’x at 412–13 (holding that additional leave was not a reasonable accommodation
where employee presented physician’s note estimating a return date because such vague estimate
of a return date was uncertain); Aston v. Tapco Int’l Corp., 631 F. App’x 292, 298 (6th Cir.
2015) (concluding that additional leave was not a reasonable accommodation even where
employee had provided a physician’s estimate of a return date because there was “no certain or
credibly proven end [to the plaintiff’s condition] in sight”).
11 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
Here, we need not determine whether a physician’s estimate would have been sufficient
because Cooley did not present ETHRA with a physician’s note addressing her narcotic usage or
prescribing the period of any additional leave required to wean her off the hydrocodone. In the
circumstances in this case, where the only evidence of recovery that Cooley presented to her
employer was her statement during her termination meeting that she was being weaned off
hydrocodone, no reasonable jury could find that ETHRA was required to grant her further leave
as an accommodation.
Cooley has failed to show that she was qualified for her position with her requested
pushing, pulling, tugging, and lifting restrictions. She has also failed to show that the only other
accommodation she identified, additional unpaid leave, would have been a reasonable
accommodation. Thus, Cooley failed to present sufficient evidence to allow a reasonable jury to
find that she was qualified for her position as an ETHRA driver.
2. Cooley’s FMLA Retaliation Claim
The FMLA entitles an employee to twelve weeks of unpaid leave because of, among
other events, a serious health condition. See 29 U.S.C. § 2612. The statute prohibits an
employer from retaliating against an employee for exercising her right to FMLA leave.
29 U.S.C. § 2615(a)(2). When a plaintiff attempts to establish an FMLA retaliation claim based
on circumstantial evidence, the McDonnell Douglas framework governs. See generally
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see, e.g., Edgar v. JAC Products, Inc.,
443 F.3d 501, 507–08 (6th Cir. 2006). Under this framework, the plaintiff bears the initial
burden of showing a prima facie case: (1) the employee was carrying out an activity protected
by the FMLA, (2) her employer knew she was exercising her rights under the FMLA, (3) the
employer took adverse action against the employee, and (4) a causal link existed between the
12 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
protected activity and adverse action. Donald v. Sybra, Inc., 667 F.3d 757, 761 (6th Cir. 2012).
If the employee establishes a prima facie case, the burden shifts to the employer to offer a
legitimate, non-discriminatory reason for the adverse action. See Skrjanc v. Great Lakes Power
Serv. Co., 272 F.3d 309, 315 (6th Cir. 2001). If the employer offers such a reason, the burden
shifts back to the employee to show that the articulated reason is a pretext to mask
discrimination. Id.
Cooley’s appeal presents two issues: (1) whether she met her burden of establishing the
fourth element of a prima facie case of retaliation (i.e., that there was a causal connection
between her taking FMLA leave and her termination) and (2) whether she met her burden of
establishing pretext. Even assuming that she established a prima facie case, her claim
nonetheless fails because she has failed to present sufficient evidence of pretext.
This court has held that the timing of an employee’s firing in relation to the exercise of
her FMLA rights may suffice to establish a causal connection for purposes of making out a prima
facie case of retaliation. See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283–84 (6th Cir.
2012); Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (“Where an adverse
employment action occurs very close in time after an employer learns of a protected activity,
such temporal proximity between the events is significant enough to constitute evidence of a
causal connection for the purposes of satisfying a prima facie case of retaliation.”). “We have
found sufficient evidence of a causal connection where the time between the employee’s leave
expired . . . and the employee’s termination was two to three months.” Judge v. Landscape
Forms, Inc., 592 F. App’x 403, 409 (6th Cir. 2014) (citing Bryson v. Regis Corp., 498 F.3d 561,
571 (6th Cir. 2007)). Here, Cooley was fired two weeks after exhausting her FMLA leave. See
Bryson, 498 F.3d at 571 (holding temporal proximity for purposes of showing causation can be
13 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
measured from the date employee’s FMLA leave expired). Further, she was terminated on the
day she attempted to return to work. For purposes of this appeal, then, we assume that the
temporal proximity was sufficient for Cooley to meet her prima facie burden of showing
causation.
ETHRA, however, met its burden of establishing a legitimate, non-discriminatory reason
for firing Cooley—that she was unable to return to work at the end of her FMLA leave. We have
held that a defendant can meet its burden of articulating a legitimate, nondiscriminatory reason in
FMLA retaliation cases when it “fires an employee who is indisputably unable to return to work
at the conclusion of the 12-week period of statutory leave.” Edgar v. JAC Prod., Inc., 443 F.3d
501, 506–07 (6th Cir. 2006). Because the parties agree that Cooley was unable to return to work
when her leave expired, ETHRA has met its burden.
For the final step, we turn to Cooley’s evidence of pretext. A plaintiff may establish
pretext by showing that the employer’s proffered reason (1) has no basis in fact, (2) did not
actually motivate the action, or (3) was insufficient to warrant the action. Seeger, 681 F.3d at
285. Regardless of the method, the plaintiff must produce sufficient evidence for the jury to
conclude that the employer’s reason was false, and that discrimination was the real reason. Id.
Unlike its role in establishing a prima facie case, “the law in this circuit is clear that temporal
proximity cannot be the sole basis for finding pretext.” Donald, 667 F.3d at 763.
Cooley offers four alleged indicators of pretext: (1) Executive Director and decision-
maker Gary Holiway did not consult with Norris, Cooley’s supervisor, prior to making the
termination decision; (2) ETHRA failed to allow her to take ninety days of unpaid leave;
(3) ETHRA failed to attempt to determine why OHS refused to certify her as fit for duty, despite
her personal physician’s work release; and (4) ETHRA provided an additional reason for firing
14 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
her in its interrogatory answers that was not mentioned in her separation notice. As
demonstrated below, none of these alleged indicators calls ETHRA’s proffered reason into
question.
First, Cooley claims pretext based on the fact that Holiway did not consult with Norris,
Cooley’s supervisor, prior to making the decision to terminate Cooley’s employment. Indeed,
Norris testified that Holiway did not seek her input prior to firing Cooley. But this fact provides
no evidence that ETHRA did not terminate Cooley’s employment for its proffered reason. In
fact, as the district court properly recognized, Holiway’s failure to consult Norris “lessens the
chance that a retaliatory intent was behind Cooley’s termination” because Norris, not Holiway,
would have been aware of Cooley’s FMLA status. Cooley, 243 F. Supp. 3d at 947. Holiway
was not notified when an employee sought FMLA leave, and he played no role in deciding
whether to bring back an employee after her leave ended. If Holiway was not aware of Cooley’s
FMLA leave status, then he could not have fired her for taking that leave. That Holiway did not
consult Norris, who was aware of Cooley’s FMLA leave status, provides no evidence that
Holiway’s decision to terminate her was motivated by an intent to retaliate against Cooley for
exercising her FMLA rights.
Second, Cooley asserts that ETHRA failed to allow her to take ninety days of unpaid
leave. According to ETHRA policies, employees may apply to take up to ninety days of unpaid
leave. Cooley testified that she received and reviewed ETHRA’s personnel policies, which
included its leave-without-pay policy. Yet Cooley never applied for leave without pay and
admitted in her deposition that she never requested such leave. That ETHRA had a potential
benefit that Cooley chose not to pursue does not show that ETHRA retaliated against her for
using her FMLA leave. Moreover, Cooley presented no evidence that ETHRA had a practice or
15 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
policy of reminding employees of the leave-without-pay option. See Skrjanc, 272 F.3d at 317
(explaining that to establish a reasonable inference of pretext based on dissimilar treatment, an
employee must show that the employer “normally gives employees an opportunity . . ., or that
another employee who had not invoked FMLA rights was [provided that opportunity]”).
Without evidence that Cooley was treated differently from other employees with regard to
ETHRA’s 90-day leave-without-pay policy, she cannot establish retaliatory intent on this basis.
Third, Cooley argues a finding of pretext is supported by the fact that ETHRA failed to
inquire as to why Dr. McElligott refused to certify her as fit for duty when her physician, Dr.
Hall, released her to return to work. Cooley appears to be challenging the reasonableness of
ETHRA’s decision to rely on Dr. McElligott’s opinion. A plaintiff may “demonstrate pretext by
offering evidence which challenges the reasonableness of the employer’s decision to the extent
that such an inquiry sheds light on whether the employer’s proffered reason for the employment
action was its actual motivation.” Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 558 (6th
Cir. 2009). But we have held that an employer making employment decisions may rely upon a
medical opinion that is objectively reasonable. Michael v. City of Troy Police Dep’t, 808 F.3d
304, 307 (6th Cir. 2015). That is exactly what ETHRA did here. ETHRA hired Dr. McElligott
to conduct Cooley’s examination. Dr. McElligott examined Cooley and issued a medical
opinion that Cooley was not fit for duty. Cooley has offered no evidence calling this opinion
into doubt. In fact, she testified in her deposition that she had reviewed the evaluation and did
not disagree with it.
Moreover, ETHRA was not required to follow Dr. Hall’s allegedly contrary opinion
because Dr. Hall, unlike Dr. McElligott, is not on the DOT’s Registry of Certified Medical
Examiners. As previously explained, Cooley was required to undergo a fitness-for-duty
16 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
examination, and it had to be performed by a DOT Certified Medical Examiner. 49 C.F.R. §§
391.45(c), 391.43(a). Because Dr. McElligott found Cooley unfit, if ETHRA had followed Dr.
Hall’s advice over Dr. McElligott’s, both Cooley and ETHRA could have been penalized. See
49 U.S.C. §§ 31302, 31304(a)(1), 521(b)(2)(C), 521(b)(6)(B)(i). Thus, Cooley has not shown
that ETHRA’s reliance on Dr. McElligott’s opinion, instead of Dr. Hall’s, suggests pretext.
Fourth, Cooley argues that pretext can be shown by the fact that in an interrogatory
response, ETHRA identified an additional reason for her firing that was not included in her
separation notice. Evidence that an employer shifted justifications for an adverse employment
action can support a finding of pretext because changing justifications over time calls into
question the credibility of those justifications. Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579,
592 (6th Cir. 2002). But Cooley presents no evidence that ETHRA changed justifications.
Cooley’s separation notice provides that she was fired because she “[c]annot pass fitness for duty
test.” ETHRA has consistently maintained that this was the primary reason for her termination.
In response to an interrogatory asking ETHRA to identify reasons for her discharge, ETHRA
referred Cooley to her separation notice and added the additional reason that she acted in an
insubordinate manner. As the district court explained, the fact that her separation notice did not
include insubordination has a simple explanation: the separation notice was prepared before the
meeting where Cooley’s insubordination occurred. Because the notice predated the meeting, it
could not have contained this additional justification. Thus, Cooley has not presented sufficient
evidence of shifting justifications to demonstrate pretext.
Based on the evidence Cooley has presented, a jury could not reasonably find that she
was fired in retaliation for exercising her FMLA rights, rather than for her inability to return to
17 No. 17-5355 Malinda Cooley v. East Tennessee Human Resource Agency, Inc.
work. The district court therefore properly granted ETHRA summary judgment on her FMLA
claim.
IV
In light of the foregoing reasons, we AFFIRM.