Brian Green v. BakeMark USA , 683 F. App'x 486 ( 2017 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0187n.06
No. 16-3141
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
BRIAN GREEN, ) Mar 27, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
BAKEMARK USA, LLC, ) DISTRICT OF OHIO
)
Defendant-Appellee. )
)
BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Brian Green began working as an
operations manager at BakeMark USA, LLC in October 2010. In September 2011, Green had
surgery after being diagnosed with thyroid cancer. Following his surgery, Green made several
failed attempts to resume full-time work at BakeMark. Green’s employment was ultimately
terminated in September 2012 after he informed BakeMark that his disability required an
indefinite leave of absence. Green sued BakeMark, its parent company, and several of its
employees1 for failure to accommodate and constructive discriminatory discharge under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district court granted
summary judgment for defendants on all claims. We affirm.
1
BakeMark is the only remaining defendant in this case.
No. 16-3141, Brian Green v. BakeMark USA, LLC
I.
A.
Brian Green began working for BakeMark as an operations manager at its Fairfield,
Ohio, facility on October 25, 2010. BakeMark provides food products and services throughout
the United States, and the Fairfield facility is one of its regional distribution centers. As
operations manager, Green was responsible for directing and coordinating all warehouse activity,
which included: closely interacting with department associates, overseeing transportation
operations and personnel to ensure timely deliveries, reviewing weekly reports, maintaining the
sanitation and physical condition of the warehouse, and performing other general supervisory
tasks.
In early September 2011, Green requested a leave of absence to undergo surgery related
to thyroid cancer. This leave was scheduled to last until October 11 but was ultimately extended
until October 17 at the request of Green’s doctor. Green returned to work without restrictions on
October 17.
On November 25, 2011, Green once again requested leave due to thyroid complications.
BakeMark approved Green’s request, and he was placed on leave until January 2, 2012. Green,
however, was unable to return to work on January 2. Instead, he submitted a doctor’s note on
January 6 stating that, due to “medical issues,” he would need an additional month of leave.
BakeMark granted Green’s request for additional leave through February 19, 2012, but notified
Green it would need additional information from Green’s doctors prior to granting leave beyond
this date. From January 6 to February 19, Green’s position remained open and he continued to
receive disability benefits under BakeMark’s short-term disability plan. BakeMark also flew in
other managers, at least intermittently, to cover Green’s responsibilities.
2
No. 16-3141, Brian Green v. BakeMark USA, LLC
On February 17, 2012, Green submitted a doctor’s note stating that he could immediately
return to work for four hours a day, five days a week, and that this restriction would be in place
for thirty days. After meeting to discuss and consider Green’s return, BakeMark extended
Green’s job-protected leave for thirty days, instead of allowing him to return on a part-time
basis. Green continued to receive disability payments from BakeMark under its short-term
disability plan during this period.
On March 16, 2012, Green submitted a doctor’s note stating that he could return to work
with an eight-hour-a-day, five-day-a-week restriction, although no durational limit was given for
this restriction.2 BakeMark replied to Green on March 19, requesting clarification as to whether
Green did, in fact, have restrictions and, if so, whether the restrictions were permanent or only
temporary.3 On March 20, BakeMark sent Green a follow-up email agreeing to accommodate
his eight-hour-a-day work restriction until Green was able to obtain clarification from his doctor
or until March 30, whichever came first.
Although instructed to do so by BakeMark, Green did not return to work between March
20 and 23. Instead, on March 23, Green emailed BakeMark a doctor’s note clarifying that
Green’s eight-hour-a-day restriction was in effect only until March 30, after which Green could
return to work without restriction. Green returned to work on March 24, and BakeMark
accommodated Green’s eight-hour-a-day work restriction until March 30.
Green fulfilled his operations-manager duties without incident until May 2, 2012. On
May 2, after working twenty-four hours straight, Green arrived home and collapsed. Green did
not report for work on May 3. On May 4, Green submitted a doctor’s note stating that he could
2
The doctor’s note limited Green to an eight-hour-a-day schedule but also stated that Green was released with “no
restrictions.” CA6 R. 18, Sealed App., at 41.
3
Green admitted in his deposition that a permanent eight-hour-a-day, five-day-a-week restriction would render him
unqualified for the operations-manager position.
3
No. 16-3141, Brian Green v. BakeMark USA, LLC
return to work on May 7 with an eight-hour-a-day restriction. BakeMark responded that Green
could return to work on May 7 but that it would need to discuss the restrictions with him at that
time. Green did not return to work on May 7 but instead submitted a doctor’s note on May 8
stating, “Brian will need to be off work until I receive and review a copy of expectations on
hours and days per week that he is expected to work. At that time I can decide on what would be
best for my patient’s current health issues.” DE 73-1, Ex. 140, at 2967. At this point, BakeMark
placed Green on job-protected leave.
On May 30, BakeMark informed Green’s doctor that Green could expect to work “10 –
12 hours a day/50 – 60 hours a week” upon his return from leave. CA6 R. 18, Sealed App., at
49. On June 24, the doctor responded that Green could return to work with certain restrictions: a
four-hour-a-day restriction for fourteen days, and an eight-hour-a-day restriction for six months
thereafter. BakeMark asked Green to participate in a telephonic conference on July 3 to discuss
these restrictions. Green declined via email, stating that the proposed restrictions were clear and
that he would prefer any future communications take place via written communications.
BakeMark promptly responded by email,
It is very important that we schedule a time for a call to discuss your doctor’s note
and additional information that the Company needs from you in order for
BakeMark to evaluate potential reasonable accommodations. The best way to
facilitate this interaction is through verbal conversation. Please remember that
you are an active BakeMark employee, and as is the case with any successful
employment situation, it is important that you be able to communicate verbally
with your colleagues and HR team.
DE 72-1, Ex. 145, Page ID 2785. Green demurred, reiterating his earlier position that his
proposed accommodations were clear and restating his preference for written communications in
the future. Around this time, Green also applied for, and received, financial benefits under
4
No. 16-3141, Brian Green v. BakeMark USA, LLC
BakeMark’s long-term disability plan, based on his representations that he was medically unable
to work as of May 4, 2012.
After several more unsuccessful attempts to schedule a meeting to discuss Green’s
proposed restrictions, the parties finally agreed to participate in a private mediation in September
2012. In mediation, Green informed BakeMark that he was completely unable to work and did
not know if, or when, he would be able to return. Green also provided BakeMark with two
letters from health-care providers confirming his inability to return to work in any capacity and
stating that he had been suffering from two severe psychological disorders—posttraumatic stress
disorder and major depressive disorder—since May 2, 2012. On September 25, BakeMark
notified Green that it was unable to accommodate an indefinite leave of absence and terminated
his employment.
In October 2012, Green applied for disability benefits (SSDI benefits) with the Social
Security Administration (SSA). Based on the representations made in Green’s application, the
SSA found that Green became disabled “under [its] rules on May 2, 2012,” and it awarded him
benefits. DE 62-32, Ex. AS, Page ID 1561–62. This is consistent with Green’s deposition
testimony that he was unable to work in any capacity as of May 2, 2012.
B.
On October 16, 2013, Green and his wife sued BakeMark, its parent company CSM
WorldWide, and various employees of BakeMark in the Common Pleas Court of Butler County,
Ohio. The defendants timely removed the case to the United States District Court for the
Southern District of Ohio. On December 11, 2013, the Greens voluntarily dismissed all of their
claims against CSM and some of their claims against the remaining defendants. On April 22,
2015, Mrs. Green dropped out of the lawsuit altogether. On January 20, 2016, the district court
5
No. 16-3141, Brian Green v. BakeMark USA, LLC
granted summary judgment for the remaining defendants on Green’s remaining claims. The
district court found that BakeMark had not, as Green alleged, failed to accommodate him in
February 2012, March 2012, or the summer of 2012. The district court further concluded that,
because BakeMark had not violated the ADA at any of these various junctures, it could not be
liable for constructive-discriminatory discharge. Green filed this timely appeal.
II.
We review a district court’s grant of summary judgment de novo. Yazdian v. ConMed
Endoscopic Techs., Inc., 793 F.3d 634, 644 (6th Cir. 2015) (citing Griffin v. Finkbeiner,
689 F.3d 584, 592 (6th Cir. 2012)). The movant is entitled to summary judgment as a matter of
law where the pleadings, affidavits, and other discoverable evidence show no genuine issue of
material fact. Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009) (citing
Fed. R. Civ. P. 56(c)). Only material factual disputes, which are determined by the substantive
law governing the issue, will be sufficient to withstand a motion for summary judgment.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We construe all facts and inferences
in favor of the non-movant to determine if there exists “sufficient evidence for a trier of fact to
find for that party.” Wheat v. Fifth Third Bank, 785 F.3d 230, 236 (6th Cir. 2015).
III.
Under the ADA, an employer is prohibited from discriminating “against a qualified
individual on the basis of [a] disability.” 42 U.S.C. § 12112(a). An employer discriminates
within the meaning of § 12112(a) when it fails to make “reasonable accommodations to the
known physical or mental limitations” of an otherwise qualified employee, unless the employer
“can demonstrate that the accommodation would impose an undue hardship on the operation” of
its business. Id. § 12112(b)(5)(A). To establish a prima facie case of failure to accommodate
6
No. 16-3141, Brian Green v. BakeMark USA, LLC
under § 12112(b)(5)(A), an employee must show that: (1) he is disabled within the meaning of
the ADA; (2) he is otherwise qualified for the position, such that he can perform the essential
functions of the job with or without a reasonable accommodation; (3) the employer knew or had
reason to know of his disability; (4) the employee requested an accommodation; and (5) the
employer failed to provide a reasonable accommodation thereafter. Johnson v. Cleveland City
Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011); see Kleiber v. Honda of Am. Mfg., Inc.,
485 F.3d 862, 869 (6th Cir. 2007). Once an employee establishes a prima facie case, “the burden
shifts to the employer to demonstrate that any particular accommodation would impose an undue
hardship on the employer.” Johnson, 443 F. App’x at 983. Green alleges that BakeMark
violated the ADA4 by failing to accommodate his disability on three separate occasions: in
February 2012; in March 2012; and in the summer of 2012.
A.
Green cannot succeed on his February 2012 failure-to-accommodate claim because he
has not shown that he was “qualified” for the operations-manager position within the meaning of
the ADA. A “qualified individual” under the ADA is one who, “with or without reasonable
accommodation, can perform the essential functions of the employment position [he] holds or
desires.” 42 U.S.C. § 12111(8); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th
Cir. 2015). A “reasonable accommodation” may include “job restructuring, part-time or
modified work schedules, [or] reassignment to a vacant position,” 42 U.S.C. § 12111(9)(B), but
“it does not include removing an ‘essential function’ from the position, for that is per se
unreasonable.” Ford Motor, 782 F.3d at 761 (citation omitted). Therefore, while a part-time
4
To the extent Green is also appealing his state-law disability claims, because Ohio’s handicap-discrimination
statute was modeled after the ADA, “[t]he standards for demonstrating a prima facie case under either [Ohio Rev.
Code § 4112.02(A) or the ADA] are virtually identical.” See House v. Kirtland Capital Partners, 814 N.E.2d 65,
75–76 (Ohio Ct. App. 2004); see also Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004).
7
No. 16-3141, Brian Green v. BakeMark USA, LLC
work schedule may be a reasonable accommodation in some cases, 42 U.S.C. § 12111(9)(B), it is
unreasonable in situations where the essential functions of the job require full-time attendance.
See White v. Standard Ins. Co., 529 F. App’x 547, 549–50 (6th Cir. 2013). A job function is
“essential” if it is “‘fundamental,’ (as opposed to ‘marginal’),” such that the position is
“fundamentally altered” if the function is removed. See Ford Motor, 782 F.3d at 762 (citing 29
C.F.R. § 1630(n)(1)). ADA regulations help illuminate what job functions are essential by
providing several non-exclusive factors for consideration:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions . . .;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3).
On February 17, 2012, Green submitted a doctor’s note stating that he could immediately
return to work four hours a day, five days a week, and that this restriction would be in place for
thirty days. After considering this request, BakeMark instead extended Green’s job-protected
leave for an additional thirty days. The basis for BakeMark’s decision was its belief that Green
would be unable to perform the essential functions of his position working only four hours a day,
five days a week. Whether Green was “qualified” under the ADA in February 2012 turns on
whether BakeMark was correct in concluding that Green could not perform the essential
functions of his operations-manager position working four hours a day, such that a part-time
accommodation was unreasonable. On this record, we conclude that it was.
First, several members of BakeMark management testified that the operations-manager
position requires, at a minimum, fifty hours per week, much more than the twenty hours a week
8
No. 16-3141, Brian Green v. BakeMark USA, LLC
in Green’s accommodation request.5 Second, Green’s own experience working long hours as an
operations manager belies any claim that he could perform the essential functions of the position
working four hours a day, five days a week. In fact, Green testified that he would be unqualified
for the position with even an eight-hour-a-day, five-day-a-week restriction.6 Third, the written
job description for operations manager emphasizes the position’s full-time nature by stressing the
“supervisory responsibilities” inherent in the position, including “closely interacting with
department associates.” CA6 R. 18, Sealed App., at 4–6. It is difficult to fathom how Green
could adequately fulfill his supervisory role if he were there to supervise and interact with the
associates only part-time. See Ford Motor, 782 F.3d at 761–62 (noting that “regularly attending
work on-site is essential to most jobs, . . . especially those involving teamwork and a high level
of interaction”). Accordingly, a twenty-hour-per-week part-time work schedule would not have
allowed Green to perform the essential functions of the operations-manager position. Green’s
proposed accommodation was therefore unreasonable, and BakeMark was not required to
provide it.
Green’s arguments to the contrary are unavailing. Green claims that because BakeMark
failed to fill his position while he was on leave—instead opting to fly in replacement managers
on an infrequent basis—he would have been performing more duties in four hours than were
being performed in his absence. But the record shows that BakeMark frequently flew in other
managers to cover for Green during most, if not all, of his absence.
5
Green relied on General Manager Steve Weltzin’s deposition testimony that working more than eight hours a day,
five days a week is not an essential function of the operations-manager position. But Weltzin clarified later in his
deposition that the position is not a forty-hour-a-week position and that operations managers were expected to work,
on average, ten-to-twelve hour days.
6
We do not mean to imply that fact questions would not arise at some point regarding whether BakeMark had an
obligation to accommodate an eight-hour-a-day schedule for some period of time, which, in fact, it did here.
9
No. 16-3141, Brian Green v. BakeMark USA, LLC
Green also argues that if he cannot perform the essential functions of his position on a
part-time basis, it necessarily follows that no employee could ever perform the essential
functions of the employee’s position on a part-time basis, thus removing this as a potential
accommodation under the ADA in violation of § 12111(9)(B). This is misguided. A part-time
or flexible schedule may be a reasonable accommodation under the ADA in some cases. See
Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1146–47 (10th Cir. 2011). In Green’s
case, however, the four-hour part-time schedule was not a reasonable accommodation because
the essential functions of the operations-manager position could not be performed within those
restricted hours and Green proposed no other reasonable option for getting his work done outside
of those hours. See White, 529 F. App’x at 549; see also Lamb v. Qualex, Inc., 33 F. App’x 49,
57 (4th Cir. 2002) (“[A] plaintiff who can work only on a part-time basis cannot be a ‘qualified
individual with a disability’ if the ability to work full-time is essential to his job.”). Green’s
position required him to supervise and interact closely with department associates for, at a
minimum, fifty hours a week. This function could not be performed while working a four-hour
part-time day. And having established that the operations-manager position required full-time
attendance, the ADA did not require BakeMark to create a special, part-time position in order to
accommodate Green. Arthur v. Am. Showa, Inc., 625 F. App’x 704, 709 (6th Cir. 2015); see also
Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998). Nor was BakeMark obliged to incur the
expense of flying in other operations managers to work part of the day.
At best, Green’s proposed accommodation would have allowed him to perform only
some functions of his position, some of the time. The ADA requires more. Because Green could
not perform the essential functions of his position with any reasonable accommodation in
10
No. 16-3141, Brian Green v. BakeMark USA, LLC
February 2012, he was not a “qualified individual” under the ADA. Summary judgment was
therefore proper on this claim.7
B.
Green’s March 2012 failure-to-accommodate claim also falls short because Green
received the only accommodation he requested. To prevail on a failure-to-accommodate claim
under the ADA, an employee must show that he actually requested an accommodation. Johnson,
443 F. App’x at 982–83. The initial burden of requesting an accommodation rests with the
employee. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th Cir. 1998). “The
employer is not required to speculate as to the extent of . . . the employee’s need or desire for an
accommodation.” Id. at 1046–47.
On March 16, 2012, Green sent BakeMark an email stating that he could return to work
on March 19 without restrictions. The doctor’s note attached to the email, however, stated that
Green could work eight hours a day, five days a week, and did not state a time limit for this
restriction. In response, BakeMark emailed Green to have his doctor clarify whether Green
actually had restrictions, and, if so, whether the restrictions were permanent or temporary. On
March 20, BakeMark sent Green a follow-up email agreeing to accommodate Green’s eight-
hour-a-day schedule, as Green’s doctor requested, until Green was able to obtain clarification
from his doctor or until March 30, whichever came first. BakeMark then instructed Green to
return to work on March 21.
Green did not return to work on March 21. Instead, on March 23, Green provided
BakeMark a doctor’s note clarifying that Green could work eight hours a day, five days a week
until March 30, after which he could work “without restriction.” CA6 R. 18, Sealed App., at 47.
7
Because Green could not perform the essential functions of the operations-manager position with or without
reasonable accommodation in February 2012, we need not address whether BakeMark’s grant of leave was a
reasonable alternative accommodation.
11
No. 16-3141, Brian Green v. BakeMark USA, LLC
BakeMark allowed Green to work with the eight-hour-a-day restriction until March 30, after
which Green resumed his normal work schedule.
Green claims that BakeMark failed to accommodate him when it did not allow him to
work with the eight-hour-a-day restriction beyond March 30. But Green did not request such an
accommodation. He requested only that he be allowed to work with this restriction until March
30, after which, as his doctor stated, he could resume a normal work schedule. BakeMark
provided Green with this accommodation.
Green nevertheless argues that he limited his accommodation request in response to
BakeMark’s March 20 email, in which BakeMark stated that it would provide Green with an
eight-hour-a-day restriction only until March 30. Although this may be true, if Green believed
that an hour restriction beyond March 30 was necessary to accommodate his disability, it was his
responsibility to make that request. See Gantt, 143 F.3d at 1046. BakeMark was not required to
speculate as to Green’s need for an additional accommodation beyond what Green specifically
requested in his March 23 email. Id. at 1046–47. Accordingly, because BakeMark provided
Green with the only accommodation he requested in March 2012, we affirm the district court’s
grant of summary judgment to BakeMark on this claim.
C.
Finally, Green’s failure-to-accommodate claim for the summer of 2012 fails because, as
was the case with his February 2012 claim, the record as a whole does not create a genuine
factual dispute as to whether Green was “qualified” for the operations-manager position in the
summer of 2012. He was not. Although the June 24, 2012 doctor’s note indicated that Green
could return to work with certain hour restrictions—four hours a day for a period of fourteen
days, and eight hours a day for a period of six months—this assertion is controverted by the
12
No. 16-3141, Brian Green v. BakeMark USA, LLC
overwhelming evidence in the record that Green was unable to work at all in the summer of
2012, including: (1) Green’s deposition testimony that he was unable to work “in any capacity”
after May 2, 2012; (2) the SSA’s finding that Green was disabled under its rules as of May 2,
2012;8 (3) Green’s doctor’s statement to Aetna, BakeMark’s short-term disability administrator,
that Green had been disabled from work since May 4, 2012; (4) Green’s interrogatory responses
that he has neither sought nor performed any work since May 1, 2012; and (5) statements
submitted by Green’s doctors during mediation that Green had suffered from PTSD and major
depressive disorder since May 2, 2012.
On this record, no reasonable juror could find that Green was able to perform the
essential functions of the operations-manager position, with or without reasonable
accommodation, in the summer of 2012. See Cleveland, 526 U.S. at 807; see also Anderson, 477
U.S. at 252. Green was therefore not a “qualified individual” under the ADA, and, as such,
summary judgment was proper on this claim.
IV.
Green also claims that BakeMark’s repeated failure to accommodate him caused him to
develop severe psychological disorders, which ultimately rendered him unable to work and
provided the basis for BakeMark to terminate him in September 2012. BakeMark’s actions,
Green claims, amount to a constructive-discriminatory discharge in violation of the ADA. We
agree with the district court that Green cannot show constructive-discriminatory discharge
8
We recognize that the SSA’s determination that Green was disabled does not bar his ADA claim. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 797–98 (1999). Green, however, must adequately explain why his SSDI
claim and award are consistent with his current ADA claim that he was able to perform the essential functions of his
operations-manager position with or without reasonable accommodation in the summer of 2012. Id. at 807. He has
not done so. His claim that he was able to work with an eight-hour-a-day accommodation during this period is
inconsistent with his SSDI claim under any scenario.
13
No. 16-3141, Brian Green v. BakeMark USA, LLC
because he has not established that BakeMark violated the ADA at any point after he became
disabled.
To establish a prima facie case of discriminatory discharge under the ADA without direct
evidence of discrimination, Green must show that: (1) he was disabled; (2) he was otherwise
qualified to perform the essential functions of his position, with or without reasonable
accommodation; (3) he suffered an adverse employment action; (4) BakeMark knew or had
reason to know of his disability; and (5) the position remained open or a non-disabled person
replaced him. Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012)
(citing Brenneman v. MedCentral Health Sys., 366 F.3d 412, 417 (6th Cir. 2004)). Once a
plaintiff makes out a prima facie case, the “burden shifts to the defendant to articulate a non-
discriminatory explanation for the employment action.” Whitfield v. Tennessee, 639 F.3d 253,
259 (6th Cir. 2011).
In this circuit, constructive discharge qualifies as an adverse employment action under
the ADA. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008).
Whether an employee can prevail on a constructive-discharge claim “depends upon the facts of
each case and requires an inquiry into the intent of the employer and the reasonably foreseeable
impact of the employer’s conduct upon the employee.” Id. (citation omitted). Specifically, it
requires a showing that “working conditions would have been so difficult or unpleasant that a
reasonable person in the employee’s shoes would have felt compelled to resign.” Id. (citation
omitted). Importantly, the employer must have “deliberately create[d the] intolerable working
conditions, as perceived by a reasonable person, with the intention of forcing the employee to
quit.” Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999) (emphasis added). In
the failure-to-accommodate context, “a complete failure to accommodate, in the face of repeated
14
No. 16-3141, Brian Green v. BakeMark USA, LLC
requests, might suffice as evidence to show the deliberateness necessary for constructive
discharge.”9 Talley, 542 F.3d at 1109 (quoting Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir.
1993)).
BakeMark clearly had the right to terminate Green’s employment in September 2012
when it was obvious he could not return to work in any capacity for the foreseeable future. See
Harris v. Circuit Court, 21 F. App’x 431, 432 (6th Cir. 2001). The issue, then, is whether
BakeMark’s treatment of Green prior to this point was sufficiently egregious to support a
constructive-discharge claim under the ADA. It was not.
Because Green has not shown that BakeMark failed to accommodate him under the ADA
in February 2012, March 2012, or the summer of 2012, he has not established the requisite
deliberateness necessary to sustain a constructive-discharge claim against BakeMark. Talley,
542 F.3d at 1109. Moreover, even if we had found that BakeMark failed to accommodate Green
at one of these various junctures, BakeMark’s actions are still not analogous to conduct we have
found sufficient to support a constructive-discharge claim. In Talley, for example, we concluded
that a reasonable juror could have found that the employer’s conduct was intended to make the
employee resign when it: (1) suddenly denied the employee an accommodation it had provided
for years; (2) refused to read a doctor’s note the employee provided; (3) failed to organize a
meeting to discuss the employee’s requested accommodations; and (4) failed to propose
alternative accommodations. Id. at 1109. BakeMark, conversely, did none of that. Instead, it
9
The Talley court qualified this holding, stating:
[O]ur holding today does not pave the way for an employee to assert a claim for constructive
discharge every time an employer fails to accommodate her disability. But when an employee
makes a repeated request for an accommodation and that request is both denied and no other
reasonable alternative is offered, a jury may conclude that the employee's resignation was both
intended and foreseeable.
542 F.3d at 1109.
15
No. 16-3141, Brian Green v. BakeMark USA, LLC
(1) openly communicated with Green’s doctor; (2) repeatedly attempted to arrange meetings with
Green to discuss potential accommodations; and (3) proposed alternative accommodations when
necessary. Green, accordingly, cannot show that BakeMark “deliberately create[d] intolerable
working conditions . . . with the intention of forcing” Green to quit, or, as relevant here, to go on
permanent medical leave. See Moore, 171 F.3d at 1080; see also Gleed v. AT&T Mobility Servs.,
LLC, 613 F. App’x 535, 540 (6th Cir. 2015) (“[T]he denial of an accommodation, by itself, is not
sufficient to prove that an employer constructively discharged an employee.”). For these
reasons, we affirm the district court’s grant of summary judgment on Green’s constructive-
discharge claim.
V.
For the reasons stated above, we affirm the district court on all counts.
16