Rita Morrissey v. Laurel Health Care Co. ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0290p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RITA MORRISSEY, an individual, ┐
Plaintiff-Appellant, │
│
> No. 18-1704
v. │
│
│
LAUREL HEALTH CARE COMPANY, a Foreign Profit │
Corporation; OAK HEALTH CARE INVESTORS OF │
COLDWATER, INC., a Domestic profit corporation, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:17-cv-00089—Janet T. Neff, District Judge.
Argued: March 12, 2019
Decided and Filed: December 3, 2019
Before: DONALD and STRANCH, Circuit Judges*
_________________
COUNSEL
ARGUED: Sarah S. Prescott, SALVATORE PRESCOTT & PORTER, PLLC, Northville,
Michigan, for Appellant. Christina A. Ginter, KITCH DRUTCHAS WAGNER VALITUTTI &
SHERBROOK, Detroit, Michigan, for Appellees. ON BRIEF: Sarah S. Prescott, SALVATORE
PRESCOTT & PORTER, PLLC, Northville, Michigan, for Appellant. Christina A. Ginter, Karen
B. Berkery, KITCH DRUTCHAS WAGNER VALITUTTI & SHERBROOK, Detroit, Michigan,
for Appellees.
*The Honorable Damon J. Keith, a member of the original panel, passed away on April 28, 2019. Judge
Stranch and Judge Donald acted as a quorum pursuant to 28 U.S.C. § 46(d).
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 2
_________________
OPINION
_________________
BERNICE BOUIE DONALD, Circuit Judge. Rita Morrissey is a licensed practical nurse
who worked for The Laurels of Coldwater (“Coldwater”), a skilled nursing and rehabilitation
center, from 2001 until she quit in 2016. Morrisey alleges that she was under a twelve-hour work
restriction due to a disability from 2012 onward, and Coldwater forced her to work beyond that
restriction, compelling her to quit.
She sued Coldwater under the Americans with Disabilities Act for discrimination, failure
to accommodate, and retaliation. At summary judgment, Morrissey supported her claims with
evidence that: (1) she was disabled, (2) Coldwater had a blanket policy of denying all requests for
accommodation that were not work-related, (3) Coldwater forced Morrissey to work beyond her
medical restrictions, and (4) Coldwater targeted Morrissey after she complained. The district court
granted summary judgment to Coldwater on all of Morrissey’s claims. Because there are
numerous material factual issues in dispute, we REVERSE and REMAND for trial.
I.
The pertinent facts underlying Morrissey’s claims begin in 2012, when she informed
Coldwater that, due to physically disabling issues with her back, she could not work more than
twelve-hours per shift. In support, she submitted a note from her primary care physician, Doctor
Terry Shipe.1 Morrissey’s file also contained two notes written by nurse practitioner, V. Jean
Bradley. The first is dated February 9, 2012, and it, too, states that Morrissey could not work for
more than twelve hours. The next note, dated February 23, 2012, provides the same restriction,
but it also states Morrissey is only restricted until her next office visit. The record contains no
further notes from Bradley. Morrissey’s position is that the absence of another note means that
she remained under a twelve-hour work restriction. Coldwater believes it means the opposite.
Thus, this fact is in dispute.
1The note was undated, but Morrissey avers it was written in January 2012.
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In a February 2012 meeting, Coldwater management informed staff that Coldwater would
not provide accommodations for any medical condition unless the condition stemmed from a work-
related injury.2 Morrissey asserts that management went so far as to tell the staff that they must
have any current restrictions lifted and that their jobs depended on it. Morrissey even submitted a
transcript of surreptitiously-recorded audio of the meeting and the affidavits of three former
Coldwater employees who corroborated this claim. Coldwater, relying on the depositions of
Regional Director Jeff Shepard and Administrator Erin Tuttle, denies there was such a policy in
place. That denial is belied by emails between Tuttle and ADA Coordinator Hal Nottingham, in
which they both state that it was Coldwater’s policy to honor only those work restrictions that were
based on work-related injuries. Thus, at best, it is a disputed fact whether Coldwater had a blanket
policy of denying all requested accommodations that were not based on a work-related injury.
In July 2015, Morrissey took leave under the Family Medical Leave Act so that she could
undergo carpal tunnel surgery. When Morrissey was ready to return to work, she alleges that she
was informed by Coldwater management that they did not allow staff to work with medical
restrictions. Morrissey informed management that she did not have a restriction due to the surgery
performed on her hands, but she reiterated that she still had a twelve-hour restriction due to her
back. Morrissey testified that management told her that they were not sure whether they would
honor her previous accommodation. On August 15, 2015, Morrissey submitted a note from her
hand surgeon that stated that she “did not have any medical restrictions,” and she returned to work
in late September This is the final medical note in Morrissey’s personnel file. Therefore, it is a
disputed fact whether Morrisey was still under a twelve-hour work restriction.
Around this time, Coldwater was considering whether it should transition its nurses to
twelve-hour shifts. Morrissey was aware of the possible change and testified that she spoke with
Director of Nursing Jeanine Hayes about it. Morrissey purportedly asked whether she could be
transferred to a unit that was not going to be converted to twelve-hour shifts, or whether Morrissey
could go to “casual status,” which would have allowed her to avoid being mandated to work longer
than twelve hours. According to Morrisey, Hayes said that Morrissey could not transfer and that
2Morrissey stated that the leaders of the meeting were Director of Nursing (“DON”) Andrea Mangold and
ADA Coordinator Hal Nottingham.
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 4
Morrissey would not have wanted to go to casual status because Coldwater was phasing out its
casual-status nurses, and casual status nurses did not receive guaranteed hours. Morrissey asserts
that this constitutes a denial of a requested accommodation.
In December 2015, Coldwater transitioned two of its three nursing units, including
Morrissey’s, to twelve-hour shifts.3 Morrissey was concerned about this transition because
Coldwater would mandate its nurses to work more than twelve-hours when the next shift was not
fully staffed. Before a nurse was mandated to stay for more than twelve-hours, Coldwater
management would call around to see if they could get the shift covered voluntarily. If they could
not, a nurse that was currently working that shift had to stay. To determine which nurse’s turn it
was to be mandated, Coldwater followed an unwritten procedure. Management maintained a list
that kept track of which nurse had been mandated most recently. That nurse was moved to the
back of the list and so forth. In the case of a tie, the selection was alphabetical.
According to Morrissey’s time records, from July 2012 through January 30, 2016, she
worked more than twelve hours on eight occasions, but there is no evidence that she was mandated
to do so in any of those instances. Indeed, she clocked out within fifteen minutes of her twelve-
hour shift ending each time.
Things indisputably changed on January 31, 2016, however, when Morrissey was
mandated by Coldwater to stay and work a 13.5-hour shift. Morrissey testified that, upon learning
that she would have to work more than twelve hours, she told her manager that she had a twelve-
hour work restriction that had to be honored under the ADA, but the manager responded that she
was unaware of Morrissey’s restriction and that the manager had “no control” over the situation.
The next day, Morrissey averred that she spoke with the Michigan EEOC and left a message with
a Coldwater corporate officer. A Coldwater operations manager called Morrissey back and left a
voice message, but Morrissey did not call him back.
3There are factual disputes as to exactly how this transpired. Morrissey argues that two of Coldwater’s three
nursing units fully transitioned to twelve-hour shifts, but Hayes testified that each unit retained at least some nurses
who worked eight hour shifts. Both Morrissey and Hayes agree that Morrissey had the seniority to obtain a position
working eight hours. However, Morrissey testified that Hayes flatly denied her request to work in a wing with eight-
hour shifts, while Hayes testified that Morrissey voluntarily chose to work twelve-hour shifts.
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 5
Five days later, the situation deteriorated further. During Morrissey’s February 4, 2016
shift, she was informed that she was going to be mandated to work sixteen hours because a
replacement nurse had called off from work. Morrissey testified that it was not her turn to be
mandated; in fact, it was Nurse Marci Farmer’s turn. Farmer corroborated that it was her turn to
be mandated in her affidavit. In the middle of the shift, Morrissey went to speak with Hayes about
being mandated, but Hayes, purportedly, told Morrissey that there was nothing Hayes could do.
Morrissey left prior to her shift ending and never returned to Coldwater.
At summary judgment, the district court ruled in favor of Coldwater, finding that Morrissey
had not established that she was disabled, that she had not suffered an adverse employment action,
that Coldwater had not failed to accommodate her, and that Coldwater did not retaliate against her.
We disagree on each point.
II.
We review a district court’s grant of summary judgment de novo. Moore v. Lafayette Life
Ins. Co., 458 F.3d 416, 431 (6th Cir. 2006). “The court shall grant summary judgment 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). All evidence must be viewed in the light most
favorable to the nonmovant. Bormuth v. Cty. of Jackson, 870 F.3d 494, 503 (2017).
We first address Morrissey’s claim for disability discrimination, which includes an analysis
of her claim for failure to accommodate. We conclude by analyzing her retaliation claim.
The ADA prohibits an employer from “discriminat[ing] against a qualified individual on
the basis of disability in regard to job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). ADA discrimination claims are analyzed under two different
rubrics, depending on whether the plaintiff relies on “direct” or “indirect” evidence of
discrimination. See Ferrari v. Ford Motor Co., 826 F.3d 885, 891-92 (6th Cir. 2016). This court
has explained the logic behind this distinction as follows:
When an “employer acknowledges that it relied upon the plaintiff’s handicap in
making its employment decision[,] the McDonnell Douglas burden shifting
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 6
approach is unnecessary because the issue of the employer’s intent, the issue for
which McDonnell Douglas was designed, has been admitted by the defendant[] and
the plaintiff has direct evidence of discrimination on the basis of his or her
disability.”
Id. at 892 (alterations omitted) (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1182 (6th
Cir. 1996)).4 Direct evidence of disability discrimination “‘does not require the fact finder to draw
any inferences’” to conclude “that the disability was at least a motivating factor.” Hostettler v.
College of Wooster, 895 F.3d 844, 853 (6th Cir. 2018) (quoting Martinez v. Cracker Barrel Old
Country Store, Inc., 703 F.3d 911, 916 (6th Cir. 2013)).
Because “not making reasonable accommodations” is listed in the ADA’s definition of
disability discrimination, see 42 U.S.C. § 12112(b)(5)(A), “claims premised upon an employer’s
failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to
accommodate) of discrimination.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.
2007).5
Under the direct framework, Morrisey bears the burden of establishing (1) that she is
disabled, and (2) that she is “otherwise qualified for the position despite his or her disability:
(a) without accommodation from the employer; (b) with an alleged essential job requirement
eliminated; or (c) with a proposed reasonable accommodation.” Kleiber, 485 F.3d at 869 (citation
and internal quotation marks omitted). Once the plaintiff has established these elements, the
employer “bear[s] the burden of proving that . . . a proposed accommodation will impose an undue
hardship upon the employer.” Monette, 90 F.3d at 1186.
The indirect method applies the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
burden-shifting framework. Monette, 90 F.3d at 1179-85. Under this framework, once a plaintiff
establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate “a
legitimate, nondiscriminatory rationale as a shield against indirect or circumstantial evidence of
4Monette was subsequently abrogated in part by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 315-
17 (6th Cir. 2012) (en banc), which held that a plaintiff must show that he or she suffered an adverse employment
action “because of” rather than “solely by reason of” disability.
5See also Brumley v. UPS, 909 F.3d 834, 839 (6th Cir. 2018); EEOC v. Dolgencorp, LLC, 899 F.3d 428, 435
(6th Cir. 2018); Hostettler, 895 F.3d at 853.
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discrimination.” EEOC v. Dolgencorp, LLC, 899 F.3d 428, 435 (6th Cir. 2018). If the defendant
can do so, “the burden then shifts back to the plaintiff, who ‘must introduce evidence showing that
the proffered explanation is pretextual.’” Ferrari 826 F.3d at 892 (quoting Monette, 90 F.3d at
1186).
Morrissey alleged: 1) a failure to accommodate and constructive discharge claim, under
the direct method and 2) a retaliation claim, under the indirect method. However, the district court
did not distinguish between these claims, instead stating only the framework for analyzing claims
brought under the indirect method. The district court granted summary judgment on Morrissey’s
claims for disability discrimination on the basis that (1) she was not disabled, and (2) she did not
suffer an adverse employment action. Before addressing those elements, we note that the district
court erred in requiring Morrisey to prove she suffered an adverse employment action to pursue a
claim for failure to accommodate. Under the direct evidence test, plaintiffs need not prove that
they suffered an adverse employment action separate from the failure of the employer to
reasonably accommodate the employee. See Kleiber, 485 F.3d at 868-69 (“failing to make a
reasonable accommodation falls with the ADA’s definition of ‘discrimination,’” meaning “an
employer’s failure to offer a reasonable accommodation necessarily” involves an adverse action);
see also Dick v. Dickinson State Univ., 826 F.3d 1054, 1060 (8th Cir. 2016) (“An employer is also
liable for committing an adverse employment action if the employee in need of assistance actually
requested but was denied a reasonable accommodation.”).
A. Failure to Accommodate
Analyzing Morrisey’s failure-to-accommodate claim begins with the elements of the direct
evidence test. To state a claim for failure to accommodate under the direct method, Morrisey must
show first that she is disabled, and second that she is “otherwise qualified for the position despite
his or her disability: (a) without accommodation from the employer; (b) with an alleged essential
job requirement eliminated; or (c) with a proposed reasonable accommodation.” Kleiber, 485 F.3d
at 869 (citation and internal quotation marks omitted). Because all of Morrisey’s claims require
her to establish that she is disabled, we begin with the law governing disability.
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 8
The ADA defines a disability as: “a physical or mental impairment that substantially limits
one or more major life activities . . . a record of such an impairment . . . or being regarded as having
such an impairment.” 42 U.S.C. § 12102(1)(A)-(C). Major life activities “include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending . . . , and working.” § 12102(2)(A). Under the 2008 amendments to the
ADA, Congress made clear that the definitions of both a “disabled person” and “substantially
limits” are to “be construed broadly in favor of expansive coverage.” § 12102(4)(A), (B); see also
29 CFR § 1630.2(j)(1)(i).
“To determine whether a disability substantially limits major life activities, the regulations
direct courts to compare the person claiming a disability to ‘most people in the general
population.’” Hostettler, 895 F.3d at 854 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). This is not a
demanding standard, 29 C.F.R. § 1630 (Appendix), and in general, a plaintiff does not need to
submit scientific, medical, or statistical proof to establish a substantial limitation, § 1630.2(j)(v).
Additionally, “‘[a]n impairment need not prevent, or significantly or severely restrict . . . a major
life activity’ to be substantially limiting.” Id. at 853-54 (quoting § 1630.2(j)(1)(ii)).
Pertinently, Congress removed the following language from the ADA in the 2008
Amendments:
With respect to the major life activity of working –
(i) the term substantially limits means 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.
The inability to perform a single, particular job does not constitute a substantial
limitation in the major life activity of working.
29 C.F.R. § 1630.2(j)(3)(i) (2010) (emphasis added). Congress omitted this provision because it
intended for courts to analyze whether a plaintiff can perform certain jobs only when a plaintiff
claims she is substantially limited from working—but not for other major life activities. See §1630
(Appendix) (“The Commission has removed from the text of the regulations a discussion of the
major life activity of working. This is consistent with the fact that no other major life activity
receives special attention in the regulation, and with the fact that, in light of the expanded definition
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 9
of disability established by the Amendments Act, this major life activity will be used in only very
targeted situations.”).
Coldwater argues that pre-2008 cases are still good law in regard to determining whether
a plaintiff was disabled. They are not. The 2008 Amendments were enacted to respond to “years
of court decisions narrowly defining who qualifies as an individual with disabilities[,] [which] left
the ADA too compromised to achieve its purpose.” Hostettler, 895 F.3d at 848. Therefore, as we
held in Hostettler, the 2008 Amendments “invalidate those decisions . . . to ‘restore the intent and
protections of the Americans with Disabilities Act.’” Id. at 849 (quoting Pub. L. No. 110-325, 122
Stat. 3553).
Morrissey asserts that she is disabled under all three definitions of disability. See
§ 12102(1)(A)-(C). The district court found otherwise, but it viewed this case through the wrong
lens and relied on outdated authority. It held that Morrissey had not established that she was
substantially limited in performing any major life activities because (1) there was a dearth of
medical evidence in the record that confirmed Morrissey’s purported diagnoses, (2) she never told
Coldwater about her specific diagnoses, and (3) a restriction on work hours alone is insufficient to
establish the existence of a disability.
That determination did not address many of Morrissey’s factual arguments or the 2008
Amendments to the ADA. From her complaint onward, Morrissey asserted that she was disabled
because she was substantially limited in her ability to walk, stand, bend, and lift repetitively due
to Scoliosis, bulging disc, Ehlers-Danlos syndrome, and Buschkes-Ollendorf syndrome. 29 C.F.R.
§ 1630.2(j)(1)(ii). She never argued that she was disabled because of an inability to work, which
is not necessary to her claim—as Congress made clear when it omitted the substantial-limitation-
on-working provision noted above. Moreover, she did not have to tell Coldwater about her specific
diagnoses. Morrissey told Coldwater that she could not work more than twelve-hours per shift
because she suffered from a disability as defined by the ADA. That was enough. See Hammon v.
DHL Airways, Inc., 165 F.3d 441, 450 (6th Cir. 1999) (“An employer has notice of the
employee’s disability when the employee tells the employer that he is disabled.”) (citation
omitted)); see also Cady v. Remington Arms Co., 665 F. App’x 413, 418 (6th Cir. 2016) (“[T]he
employee need not use the word ‘disabled,’ but the employer must know enough information about
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 10
the employee’s condition to conclude that he is disabled. Relevant information could include,
among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-
imposed work restrictions.” (internal citation omitted)). Finally, as Coldwater tacitly concedes,
Morrissey’s medical records establish that she suffered from disc disease. Thus, the district court
erred on the grounds it used to support its holding.
Framed correctly, the question before us is whether Morrissey submitted enough evidence
to show that she is substantially limited in her ability to walk, stand, lift, or bend. In her deposition,
Morrissey testified that she did not have a specific limitation on the distance she could walk, the
amount of time she could stand, the amount of bending she could do, or the amount of weight she
could lift. Instead, she averred that, after an eight to twelve-hour shift, she had difficulty walking,
standing, lifting, and bending. She testified that she was in pain constantly, and her nursing shifts
exacerbated the pain. Specifically, she said that she had severe pain in her buttocks and right leg
and numbness and tingling in her feet after a shift. See 28 C.F.R. Pt. 35, App. C (“[A]n individual
whose impairment causes pain or fatigue that most people would not experience when performing
that major life activity may be substantially limited.”). Additionally, she testified that she had so
much trouble bending over that it was difficult to put on her underwear. Morrissey’s daughter
submitted an affidavit in which she stated that Morrissey did not walk at all or walked with a slight
hunch and a pained expression after completing a day of work.6 Morrissey’s daughter also stated
that Morrissey did not complete household chores that required lifting, bending, or stooping after
working. Given that the term “substantially limits” is to “be construed broadly in favor of
expansive coverage,” Morrissey has satisfied her burden of showing that she is disabled.7
6Coldwater argues that Morrissey’s daughter’s affidavit pertains only to Morrissey’s conditions in 2018, the
year the affidavit was signed. However, in viewing the evidence in the light most favorable to Morrissey, the affidavit
can be read as referencing the relevant time period.
7The district court also found that Morrissey could not show that she was regarded as disabled and purported
to find that she did not have a record of a disability. First, there are material factual issues in dispute as to whether
Coldwater regarded Morrissey as disabled. 42 U.S.C. § 12101(3) (“[A]n individual is ‘regarded as [disabled]’ if the
individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether
or not that impairment substantially limits, or is perceived to substantially limit, a major life activity.”). Morrissey
repeatedly told Coldwater that she was under a work restriction due to a disability, and there is evidence that Coldwater
constructively discharged Morrissey due to her disability, as is discussed infra. While neither of these facts are
conclusively established by the record, that is precisely why the claim must proceed to trial. Second, the district court
provided no analysis to underpin its holding that Morrissey did not have a record of a disability, and on appeal,
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 11
The district court also found that the record did not support Morrissey’s assertion that
Coldwater did not accommodate her. Under the ADA, discrimination includes “not making
reasonable accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability unless such [employer] can demonstrate that the accommodation would
impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A). A reasonable accommodation includes
“job restructuring, part-time or modified work schedules, reassignment to a vacant position . . .,
and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B).
The court opined that “Plaintiff’s evidence from over the course of four years reveals one,
isolated 13.5 hour shift and eight de minimis overages.” (Op. & Order, R. 136, PageID 1284.)
According to the court, these “[d]e minimus employment actions are not actionable under the
ADA.” (Id.) However, this interpretation of the record ignored pertinent context and did not
evaluate the facts that elucidated the material factual issues in dispute, which, under controlling
precedent, reveal that Coldwater was not entitled to summary judgment. Talley v. Family Dollar
Stores of Ohio, Inc., 542 F.3d 1099 (6th Cir. 2008).
To begin, Morrissey testified that Coldwater had a policy whereby it did not accommodate
any employee’s medical restrictions unless the injury was job-related. Next, prior to Coldwater
transitioning its nursing staff to twelve-hour shifts in late 2015, Morrissey asserts that she
requested to be moved to a unit that required nurses to work only eight-hour shifts and that she
requested to be moved to casual status, which would have prevented her from being mandated to
work in excess of twelve-hours. According to Morrissey, Coldwater denied both requests.
Additionally, after the transition to twelve-hour shifts, Morrissey averred that she was on a list of
rotating nurses who were sporadically mandated to work beyond twelve hours, as evidenced by
Morrissey’s mandated 13.5-hour shift on January 31, 2016. Finally, Morrissey testified that she
was mandated to work for 16 hours on February 4, 2016, but she left work in the middle of her
Coldwater’s entire argument consists of one short paragraph with no analysis. Either of these are grounds for reversal.
On the merits, though, Morrissey’s personnel file had medical notes supporting her restriction; she repeatedly told
Coldwater that she was under a restriction; and for a time, Coldwater honored the restriction. See 29 C.F.R.
§ 1630.2(k)(1) (“An individual has a record of a disability if the individual has a history of, or has been misclassified
as having, a mental or physical impairment that substantially limits one or more major life activities.”). Therefore,
this claim must also progress.
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 12
shift to avoid the mandatory overage. Morrissey also states that she was improperly required to
work 16 hours, rather than the nurse who was to take the next overage.
Viewing the evidence in the light most favorable to Morrissey, it shows that: (1) Coldwater
had a blanket policy of denying accommodations for all non-work related disabilities,
(2) Coldwater knew that Morrissey was under a twelve-hour work restriction, (3) Morrissey
requested an accommodation, (4) Coldwater forced her to work beyond that restriction on January
31, 2016, and (5) Coldwater attempted to do so again five days later. On these facts, Morrissey’s
overages from 2012-2015 are inconsequential. But, Coldwater’ argument improperly ignores the
fact that it forced Morrissey, a disabled employee, to stay and work in excess of her physician-
instituted medical restriction—and attempted to do so again five days later. The record shows that
Morrissey asked Coldwater for an accommodation due to her disability, and Coldwater did not
accommodate her. She was not required to establish anything more for her claim to ripen.8 See
Talley, 542 F.3d at 1103-04, 1109 (holding that the defendant failed to accommodate an employee
based on the employer’s refusal to allow her to use a stool on the same day she requested to use
the stool, and the employee left during the shift). This satisfies Morrisey’s burden under the direct
evidence test applicable to a claim of failure to accommodate. Kleiber, 485 F.3d at 868-69.
Coldwater thereafter makes no argument that summary judgment was warranted because
the “proposed accommodation [would] impose an undue hardship upon the employer.” Monette,
90 F.3d at 1186. We, therefore, do not address this issue, and Morrisey’s failure to accommodate
claim may proceed to trial.
8We must pause here to address one more error made by the district court. It held that, because Morrissey’s
allegations did not rise above “de minimis employment actions,” she was not entitled to relief on her claim for failure
to accommodate. First, however, the de minimis standard arises in the context of an adverse employment action, not
a failure to accommodate. Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456,
462 (6th Cir. 2000). Second, and more importantly, under the district court’s logic, an employer would be free to
contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity
before the employer is liable. Such a rule would be not only cruel, but it would also contravene our previous precedent
and the ADA. See Talley, 542 F.3d at 1109 (holding that the plaintiff had a viable claim for discrimination when the
plaintiff quit almost immediately after her employer denied her physician-supported request for an accommodation).
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 13
B. Constructive Discharge
The district court also granted summary judgment to Coldwater on Morrisey’s constructive
discharge discrimination claim because it found that Morrisey was not disabled and had not been
constructively discharged. For the reasons described above, a dispute of material fact remains over
whether Morrisey is disabled. This claim is properly analyzed under the direct evidence test
because Morrisey’s constructive discharge was premised on Coldwater’s failure to accommodate
her. Kleiber, 485 F.3d at 868 (claims premised upon an employer’s failure to offer a reasonable
accommodation necessarily involve direct evidence).9
“To demonstrate a constructive discharge, [a] [p]laintiff must adduce evidence to show that
1) ‘the employer . . . deliberately created intolerable working conditions, as perceived by a
reasonable person,’ and 2) the employer did so ‘with the intention of forcing the employee to quit
. . . .’” Logan v. Denny’s, 259 F.3d 558, 568-69 (6th Cir. 2001) (quoting Moore v. KUKA Welding
Sys., 171 F.3d 1073, 1080 (6th Cir. 1999)). “It requires a finding 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.’” Talley, 542 F.3d at 1107 (quoting Held v. Gulf Oil Co., 684 F.2d 427,
432 (6th Cir. 1982)).
The district court found there was no constructive discharge for largely the same reasons it
found Coldwater had not failed to accommodate Morrissey—because her evidence was not
enough. We disagree.
In Talley, we stated that “a complete failure to accommodate, in the face of repeated
requests, might suffice as evidence to show the deliberateness necessary for constructive
discharge.’” 542 F.3d at 1109 (quoting Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir. 1993)).
This case presents precisely that scenario. Morrissey informed Coldwater numerous times of her
twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours
9A constructive discharge claim may sometimes be properly analyzed under the indirect test when the claim
is not premised on a failure to accommodate but instead on another form of disability discrimination (i.e., a claim
more akin to a traditional Title VII discrimination claim). See Kleiber, 485 F.3d at 868 n. 2 (noting that for “claims
premised upon an adverse employment decision such as a failure to hire, failure to promote, or discharge,” the indirect-
evidence test may be appropriate).
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 14
on January 31, 2016. When Morrissey told her manager that she had a disability that prevented
her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over
the situation. Five days later, Morrissey was informed that she was being mandated to work sixteen
hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.
When she complained to Hayes, Hayes stated there was nothing she could do. In the face of
Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff
in her position would have felt compelled to resign. Because Morrissey has shown that a
reasonable juror could have found that she was constructively discharged, she has satisfied the
adverse employment element. Her claim for disability discrimination proceeds to trial.10
We also note that Coldwater cannot escape liability by arguing that its blanket policy of
denying accommodations for all non-work-related disabilities is ostensibly neutral. If a school
“lacked an elevator to accommodate a teacher with mobility problems[,]” it “could not refuse to
assign him to classrooms on the first floor, then turn around and fire him for” the so-called neutral
policy of “being late to class after he took too long to climb the stairs between periods.”
Dolgencorp, 899 F.3d at 435. Put another way, even though a requirement that a teacher be in the
classroom when the bell rings is a neutral attendance requirement, a tardy teacher is not unqualified
if his tardiness results from his employer’s unwillingness to provide a reasonable accommodation.
So too here. Coldwater cannot refuse to provide Morrisey with a reasonable accommodation and
then conclude that she is not qualified for her position because she cannot meet her job’s
requirements without an accommodation.
As already discussed, Coldwater does not argue that summary judgment was appropriate
because the “proposed accommodation [would] impose an undue hardship upon it.” Monette, 90
F.3d at 1186. Thus, Morrisey’s constructive discharge claim may proceed to trial.
C. Retaliation
Morrisey’s last claim is that Coldwater retaliated against her for exercising her rights under
the ADA. This claim is properly analyzed under the indirect evidence test, which follows the
10Coldwater submits no argument that its actions were legitimate and nondiscriminatory. Therefore, we do
not address that issue.
No. 18-1704 Morrissey v. Laurel Health Care Co., et al. Page 15
McDonnell Douglas burden shifting approach. To establish a prima facie case of retaliation, a
plaintiff must show that “(1) [she] engaged in activity protected under the ADA; (2) the employer
knew of that activity; (3) the employer took an adverse action against plaintiff; and (4) there was
a causal connection between the protected activity and the adverse action.” Rorrer v. City of Stow,
743 F.3d 1025, 1046 (6th Cir. 2014) (citing A.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697
(6th Cir. 2013)).
The district court granted summary judgment to Coldwater after finding that Morrissey had
not suffered an adverse employment action. But we have long recognized that a constructive
discharge qualifies as an adverse employment action., e.g., Arndt v. Ford Motor Co., 716 F. App’x
519, 529 (6th Cir. 2017), and for the reasons described above, the record supports a finding that
Morrisey was constructively discharged. As for the remaining elements, Morrissey requested,
repeatedly, that Coldwater accommodate her twelve-hour work restriction, which, assuming that
the restriction was still in effect, constituted protected activity. A.C. ex rel. J.C., 711 F.3d at 698.
Next, considering that Morrissey asked management and administration at Coldwater to be
accommodated, Coldwater was aware of the activity. Finally, viewing the record in Morrissey’s
favor, it could be interpreted to show that, because of her alleged work restriction, Coldwater
targeted Morrissey to be mandated to work more than twelve-hours on February 4, 2016, leading
to the constructive discharge. Morrissey and Marci Farmer both stated that it was Farmer’s turn
to be mandated that day, but for some reason, Morrisey was. Coldwater does not provide an
explanation for this beyond asserting that there is no evidence from a manager as to exactly how
the mandatory overtime process worked, but Morrissey herself testified that there was a rotating
system in place. Therefore, this is a disputed fact. Given that Coldwater has offered no legitimate,
undisputed evidence explaining why Morrissey was mandated ahead of Farmer on February 4,
2016, a dispute of material fact exists. It was not appropriate to grant summary judgment on the
causal-connection element.
III.
Based on the foregoing, we REVERSE the district court’s grant of summary judgment to
Coldwater on all of Morrissey’s claims and remand the case for further proceedings consistent
with this opinion.