Shemelia Burdett-Foster v. Blue Cross Blue Shield of MI , 574 F. App'x 672 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0572n.06
Case No. 13-2632 FILED
Jul 29, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHEMELIA BURDETT-FOSTER, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
BLUE CROSS BLUE SHIELD OF ) MICHIGAN
MICHIGAN, )
)
Defendant-Appellee. ) OPINION
)
BEFORE: WHITE, DONALD, and O’MALLEY, Circuit Judges.*
Bernice B. Donald, Circuit Judge. Blue Care Network of Michigan (“BCN”), a wholly
owned subsidiary of Blue Cross Blue Shield of Michigan (“BCBS”), terminated Shemelia
Burdett-Foster’s employment on January 26, 2011. Burdett-Foster filed suit, alleging that BCN
impermissibly fired her because of her race and medical disabilities. In a motion for summary
judgment, BCBS countered that Burdett-Foster was terminated for cause. The district court
agreed and entered judgment in favor of BCBS. We AFFIRM.
*
The Honorable Kathleen M. O’Malley, United States Court of Appeals for the Federal Circuit, sitting by
designation.
Case No. 13-2632
Burdett-Foster v. Blue Cross Blue Shield of Michigan
I.
Burdett-Foster, an African-American woman, began working for BCN on July 10, 2000.
She worked in a number of different positions. When BCBS and BCN merged around 2011,
Ferren Gibson, an African-American male with whom Burdett-Foster had worked, took over
managing Burdett-Foster’s department. From June 2009 until her termination Burdett-Foster
was a provider registration specialist. Burdett-Foster was a bargaining-unit employee subject to
the Master Labor Agreement between BCN and her union—the International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America (“UAW”).
In early 2011, Burdett-Foster was diagnosed with depression. BCN’s third-party
disability program administrator, CompOne Administrators, granted Burdett-Foster a short-term
disability (“STD”) leave of absence from March 8, 2011 to May 22, 2011. When Burdett-Foster
returned to work, her doctor requested she be able to use the bathroom frequently because of a
side effect of the blood-pressure medication she was taking. BCN agreed to this accommodation
on a trial basis. Burdett-Foster testified that although she was allowed frequent bathroom breaks,
her direct supervisor, Al Walgenbach, followed her to the bathroom on a daily basis, stood
outside the bathroom door with arms folded, and followed her around the building.
In mid-2011, certain BCN employees, including some of Burdett-Foster’s more senior
coworkers, began performing backup telephone duties when needed to address the high volume
of customer calls. When Burdett-Foster returned to work after her STD leave, the UAW
complained that Burdett-Foster, as a junior employee, should be required to start telephone
training so that she could perform backup duty. Burdett-Foster’s supervisors then notified her
that she would need to complete telephone training. In July 2011, Burdett-Foster told a BCN
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director, Barbara Derian, that she did not want to answer the telephone. In a memo, Derian
summarized:
While visiting the PEDM operations, I stopped by to say “hi” to Shemilia [sic].
She started to cry and I asked if she would like to go off the floor and speak with
me. I asked if she wanted to go somewhere private. She said “yes” and I took her
to the QM library.
She told me that she did not want to be on the phones. She was very upset and
crying. We discussed if she likes to help people and that phone work was helping
people. We also discussed how sometimes we don’t have passion for everything
we do at work but that if we can put on a service persona for when we are at
work, we can be successful. I explained that we need to follow the contract and
her seniority requires that she be a phone back up. It is a back up position not full
time phones. I was able to calm her down and she returned to the floor.
Burdett-Foster completed the basic part of phone training; that is, she learned to operate
the phones and sat with two persons to listen to calls. Shortly thereafter, in either July or August
of 2011, Burdett-Foster informed her managers that she could not complete telephone training
because she had a problem with her vocal cords that prevented her from speaking above a
whisper. BCN immediately postponed her training. A few weeks later, at BCN’s request,
Burdett-Foster submitted documentation from her treating physician, Michael Stone, M.D. In an
August 15, 2011 letter, Dr. Stone explained:
[Ms. Burdett Foster] comes in with a several week history of hoarseness. She
noticed this after going to a concert and screaming a lot. She has also had
persistent sore throat . . . .
She is speaking with a whisper.
....
Assessment & Plan: Vocal cord dysfunction. Her exam is entirely normal. She
just needs to speak the right way. She likely developed some pain at [a] concert
that resulted in pain with talking. She is able to move her vocal cords normally
now but she just cannot sound clear when she does it. I have recommended
speech therapy as they will give her some exercises to strengthen her voice and
help get rid of the whisper.
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Her telephone training was postposed further, and Burdett-Foster was not required to perform
backup telephone duties at that time.
Because telephone backup constituted “5-15% of her daily job function” and BCN
needed additional telephone assistance, CompOne notified Burdett-Foster that she would have a
fit-for-duty evaluation on August 26, 2011 at 10:15 a.m. with Mark Uzansky, D.O., to assess her
ability to complete telephone training. Burdett-Foster initially agreed to this evaluation, but at
11:48 p.m. on August 25, she notified BCN’s human resources manager, Patricia Brewer, that
she would not attend because she had preapproved Personal Time Off (“PTO”) on August 26,
2011. CompOne rescheduled the exam with Dr. Uzansky to September 9, 2011, but Burdett-
Foster failed to attend this examination. When the exam was again rescheduled to September 16,
Dr. Uzansky was unavailable, so Burdett-Foster met with Ted Schwartzenfeld, M.D. Burdett-
Foster attended this evaluation, and Dr. Schwartzenfeld diagnosed her with “[h]oarseness–
dysphonia” and recommended further evaluation via videostroboscopy—a common procedure
that involves using a camera and strobe light to capture vocal cords in motion. Dr.
Schwartzenfeld added that until her voice is normal, she should not be talking on the phones.
On October 11, 2011, Mary Kay Mitchell, R.N., of CompOne, notified Burdett-Foster
that she needed to schedule a videostroboscopy with Dr. Stone. Burdett-Foster scheduled a
videostroboscopy appointment for October 21, 2011 but later cancelled it without notifying BCN
or CompOne. She rescheduled the appointment for October 25 but again cancelled without
notice. Burdett-Foster wrote Mitchell at CompOne on October 27, 2011, copying Brewer and
Craft-Brown:
The appointment on 10-25-11 was cancelled by me for the same reason as the first
appointment. I’m still awaiting Hr [sic] or the union to give me a code in writing
so that I can give it to leadership. As stated before I can’t leave work without
letting leadership know that I’m leaving work and what code I would be using
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while I’m gone. So I need a code for all of the appointments as they are all during
work hours.
Ms. Brewer I’ve sent prior request [sic] about the codes before both schedule [sic]
appoints [sic], please advise as to what code I would be using in regards to all of
the doctor appointments you’re requesting me to go to . . . .
Burdett-Foster, however, had not obtained such a code before attending her earlier medical
appointments. Brewer maintained that she had told Burdett-Foster that she did not need a code,
and Burdett-Foster acknowledged that UAW Chairperson Valerie Craft-Brown had told her to
use a miscellaneous code.
On October 27, 2011, CompOne scheduled a videostroboscopy appointment for Burdett-
Foster on November 1, 2011. The next day, Brewer issued Burdett-Foster a five-day disciplinary
suspension for insubordination. The disciplinary report states:
Over the past couple of months, Shemelia Foster has failed [to] keep
appointments that [have] been scheduled for her through CompOne. Ms. Foster
has been very deliberate in being insubordinate by rescheduling, canceling and/or
no showing for appointments that have been scheduled through HR and
CompOne.
The following are examples of insubordination: failing to pick up the memo from
HR outlining her physician 8/26 appointment, Notifying HR in an untimely
manner that she had a day off on the day of the 8/26 appointment, No showing
when the 8/26 appointment was rescheduled to 9/9, cancelled the 10/21
appointment and failing to show for the 10/25 appointment.
The report further explains that “Ms. [Burdett-]Foster will be expected to keep all medical
appointments and schedule those appointments which will allow her to perform the full scope of
her job” and that “[a]ny future acts of insubordination will lead to discipline up to and including
termination.”
Burdett-Foster did not attend her November 1 videostroboscopy appointment and did not
return to work at the end of her suspension on November 4, 2011. After fainting at her home on
November 1, Burdett-Foster’s husband took her to the emergency room, where she was
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diagnosed with syncope (temporary loss of consciousness caused by temporary decrease in blood
flow to the brain), depression, and dehydration and discharged about four and a half hours later.
Burdett-Foster called in an STD claim and was eventually granted leave until January 10, 2012.
Both before she was granted this second STD leave and while she was on the first leave,
CompOne requested that Burdett-Foster complete her speech therapy. Burdett-Foster attended
only one speech therapy session, on December 29, 2011, because her insurance company denied
authorization. CompOne also asked about the status of Burdett-Foster’s fitness-for-duty
examination, particularly the videostroboscopy. Eventually, around December 21, 2011,
CompOne confirmed with her treating psychiatrist, Dr. Tariq Abbasi, that Burdett-Foster was
stable enough to undergo videostroboscopy and notified Burdett-Foster. On December 27, 2011,
Burdett-Foster emailed Mary Kay Mitchell, stating: “My speech therapy apt is this Thursday at
11. Due to my religion the videostroboscopy isn’t scheduled as this is against my religion.”
This statement was the first time she mentioned any religious conflict.
After learning that videostroboscopy violated Burdett-Foster’s religious beliefs, a BCN
HR Representative, Ursulla McWhorter, requested via email, regular mail, and certified mail sent
on December 27, 2011, to meet “to discuss this issue so that we can talk to you directly and have
a clear understanding regarding your concerns.” McWhorter asked to meet at the BCN Human
Resources Office at Burdett-Foster’s convenience sometime on or before January 4, 2012.
After Burdett-Foster emailed on December 30, 2011 to say that she would meet with
McWhorter once she returned to work on January 11, McWhorter requested that Burdett-Foster
“send me an explanation in writing about your concerns as to how your religion impacts your
ability to schedule and/or attend a videostroboscopy. I need this information no later than close
of business, Wednesday, January 11, 2012.” Burdett-Foster did not respond to this request.
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When McWhorter met with her on January 11, Burdett-Foster declined to explain her religious
objections, stating that it was a private issue: “I would rather not discuss what my religion is as
that is my privacy. I do not want to disclose and explain it.”
After this exchange, Burdett-Foster received another five-day disciplinary suspension for
insubordination. She refused to sign the disciplinary report, which stated:
Over the past several months Shemelia Burdett-Foster has failed to keep medical
appointments that have been scheduled for her through CompOne. Ms. Burdett-
Foster has been very deliberately insubordinate by rescheduling, canceling and/or
not appearing for numerous medical appointments that have been rescheduled for
her by HR and CompOne. In October, 2011, Shemelia received a disciplinary
suspension due to insubordination over the same issue. She now continues to be
insubordinate by refusing to disclose her reason(s) for not scheduling or taking the
videostroboscopy that is required based on her fit-for-duty evaluation. Shemelia’s
job requires that she speak on the telephone and make outbound calls. The
videostroboscopy is required by the fit-for-duty doctor to help determine the
cause of her vocal problems. Shemelia has been told on several occasions by both
ER/LR and CompOne that she must have this test completed before returning to
work. Shemelia has stated she cannot take this test due to religious reasons;
however she refuses to discuss her religious reasons for not taking the test. It has
been explained to her that this information is needed so that the company can
determine if it is possible to make accommodations for her based on her situation.
On 1-11-12 when asked whether she would take the videostroboscopy, Shemelia
again refused based on her religion and stated she did not want to discuss or
disclose this information.
Burdett-Foster was required to return to work on January 18, 2012 and was “expected to
complete the fit-for-duty requirements and have a videostroboscopy before she returns to work.”
On January 17, 2012, Burdett-Foster met with her therapist, Janice McCrary. That
evening, McCrary faxed progress notes to CompOne R.N. Mary Kay Mitchell, stating that
during the psychotherapy session that day, Burdett-Foster exhibited suicidal ideation and had a
panic attack. McCrary’s notes further state that she referred Burdett-Foster to intensive therapy,
three times a week and “suggest not to return to work.” On the fax cover sheet to R.N. Mitchell,
McCrary wrote “will fax Dr. Abassi notes again on 1-19-12 when he will be back in office. Will
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call you in the am.” Burdett-Foster, however, neither asked for nor received additional STD
leave and presented no evidence that Dr. Abassi’s notes were faxed.
On January 26, 2012, BCN terminated Burdett-Foster’s employment. In the termination
letter, McWhorter explained:
Our records indicate you have been absent from work since January 18, 2012
through today and you have not returned after serving an unpaid suspension from
January 11 through January 17, 2012 for Insubordination. Further, you have
failed to personally notify management of the reason for your unscheduled
absence.
Therefore, this is to inform you that your employment with the company has been
terminated effective today, January 26, 2012 in compliance with the Master Labor
Agreement (MLA), Loss of Seniority, Article 8.11. The applicable MLA
language is as follows:
“Employees shall lose their seniority and employment rights if: The
employee is absent for three (3) consecutive working days without
properly notifying the Company of the reasons for such absence, unless it
was not reasonably possible to do.”
II.
Burdett-Foster filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”). The EEOC was “unable to conclude that the information obtained
establishes violations of the statutes” and issued a right-to-sue letter on June 25, 2012. On
September 26, 2012, Burdett-Foster filed an initial pro se complaint with the United States
District Court for the Eastern District of Michigan. After securing counsel, she amended her
complaint twice. Burdett-Foster’s second amended complaint brought the following claims:
(I) “Racial Discrimination In Violation of Title VII Of The Civil Rights Act Of 1964”;
(II) “Racial Discrimination Under The Elliot-Larsen Civil Rights Act”; (III) “Retaliation”; and
(IV) “Unlawful Discrimination And Hostile Work Environment Under The ADA.”
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The original discovery deadline was set for June 13, 2013, but at the parties’ mutual
request, the district court extended it to August 12, 2013. At Burdett-Foster’s request and over
BCBS’s objection, the district court again extended the deadline until December 17, 2013.
Burdett-Foster did not, however, request the modification of any other dates on the scheduling
order. Pursuant to the scheduling order, BCBS moved for summary judgment on September 12,
2013. After securing a two-week extension, Burdett-Foster filed her response on October 17,
2013. Burdett-Foster voluntarily dismissed her race-discrimination claims under Title VII and
Michigan’s Elliot-Larsen Civil Rights Act but argued that genuine issues of material fact
remained for her other claims.
Although the district court had set a November 20, 2013 hearing on dispositive motions,
it cancelled this hearing, granted BCBS’s motion for summary judgment, and dismissed the case
on November 14. The district court determined that Burdett-Foster’s ADA and retaliation claims
failed as a matter of law because she could neither establish a prima facie case for any of her
claims nor produce evidence indicating that BCBS’s legitimate, nondiscriminatory reasons for
terminating her employment were pretext for a discriminatory or retaliatory motive. Burdett-
Foster timely appealed.
III.
We review de novo a district court’s grant of summary judgment using the Matsushita-
Anderson-Celotex standard. Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).
Summary judgment is proper where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We view facts in the
record and reasonable inferences that can be drawn from those facts in the light most favorable to
the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
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(1986). We do not weigh evidence, assess credibility of witnesses, or determine the truth of
matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The party requesting summary judgment bears an initial burden of demonstrating that no
genuine issue of material fact exists, which it must discharge by producing evidence to
demonstrate the absence of a genuine issue of material fact or “by showing . . . that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 323-325 (1986) (internal quotation marks omitted). If the moving party satisfies this
burden, the nonmoving party may not “rest upon its . . . pleadings, but rather must set forth
specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578
F.3d 351, 374 (6th Cir. 2009) (citing Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 586). A party
asserting a genuine issue of material fact must support this argument either by “citing to
particular parts of materials in the record” or by “showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Evidence that is “merely
colorable” or “not significantly probative” is insufficient. Anderson, 477 U.S. at 248-52. If there
are no disputed, material facts, we review de novo whether the district court properly applied the
substantive law. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2003).
IV.
On appeal, Burdett-Foster argues that summary judgment was inappropriate because:
(1) the district court generally erred by assuming the role of the jury and making credibility and
factual determinations in violation of Fed. R. Civ. P. 56(c); (2) she submitted sufficient evidence
to generate genuine issues of material fact regarding her discrimination, retaliation, and hostile
work environment claims under the ADA, particularly when considerable discovery was yet to
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take place and without oral argument; and (3) she submitted sufficient evidence of a genuine
issues of material fact regarding her race-based Title VII retaliation claim such that summary
judgment was inappropriate.
A.
Burdett-Foster alleges that BCN denied her reasonable accommodations in violation of
the ADA. The ADA makes it unlawful for an employer to “discriminate against a qualified
individual on the basis of a disability.” 42 U.S.C. § 12112(a) (2012). The statute defines
“discriminate” to include “not making reasonable accommodation to the known
physical . . . limitations of an otherwise qualified individual with a disability” unless the
employer “can demonstrate that the accommodation would impose an undue hardship.”
§ 12112(b)(5)(A). An “otherwise qualified individual” is one who “with or without reasonable
accommodation, can perform the essential functions of the employment position that such
individual holds or desires.” § 12111(8).
“Where, as here, the plaintiff seeks to establish discrimination through indirect, rather
than direct, evidence, we require the plaintiff to establish a prima facie case, followed by the
familiar McDonnell Douglas burden-shifting.” Talley v. Family Dollar Stores of Ohio, Inc.,
542 F.3d 1099, 1105 (6th Cir. 2008). A prima facie failure-to-accommodate case requires a
plaintiff to show that: (1) she is disabled under the meaning of the ADA; (2) she is otherwise
qualified; (3) the employer knew or had reason to know of her disability; (4) she requested an
accommodation; and (5) the employer failed to provide the necessary accommodation. E.g.,
Dicarlo v. Potter, 358 F.3d 408, 419 (6th Cir. 2004) (quoting Gaines v. Runyon, 107 F.3d 1171,
1175-76 (6th Cir. 1997)). “The employee also bears the burden of proposing reasonable
accommodations; an employee’s claim must be dismissed if the employee fails to identify and
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request such reasonable accommodations.” Johnson v. Cleveland City Sch. Dist., 443 F. App’x
974, 983 (6th Cir. 2011) (citing Tubbs v. Formica Corp., 107 F. App’x 485, 488-89 (6th Cir.
2004)). Once a plaintiff establishes a prima facie case, the defendant bears the burden of
demonstrating that any particular accommodation would impose an undue hardship on the
employer. See DiCarlo, 358 F.3d at 419.
Burdett-Foster testified that her disabilities were depression, hypertension, and migraines;
she did not list her vocal cord issues as a disability. Assuming that these constitute disabilities
under the ADA, that she was otherwise qualified for her position, and that BCN knew of these
disabilities, Burdett-Foster’s failure-to-accommodate claim nonetheless fails because, by her
own admission, she did not ask for any accommodations aside from being able to make frequent
trips to the bathroom, which BCN permitted. The only additional accommodation Burdett-Foster
perhaps requested was that she remain in the same department but report to a different
supervisor—a request that BCN denied because of her seniority level. Burdett-Foster does not
specifically tie this request to any of her disabilities; rather, she asserts that she wanted to avoid
general harassment, which seems to link to her depression.
“Personality conflicts, workplace stress, and being unable to work with a particular
person or persons do not rise to the level of a ‘disability’ or inability to work for purposes of the
ADA.” Fricke v. E.I Dupont Co., 219 F. App’x 384, 389 (6th Cir. 2007) (citing Weiler v.
Household Fin. Corp., 101 F.3d 519, 524-25 (7th Cir. 1996)). Even if Burdett-Foster had
requested a transfer to a new position (and she made clear in her deposition that she had not),
such an accommodation is reasonable only if there is another position for which she would have
been qualified. See Coulson v. The Goodyear Tire & Rubber Co., 31 F. App’x 851, 857 (6th Cir.
2002) (citing Burns v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000)). Undisputed
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evidence in the record, however, indicates that Burdett-Foster was not qualified for any other
positions that were open at the time.
Burdett-Foster claims that her depression was not accommodated because she was
harassed based on the number of bathroom breaks her blood-pressure medication required her to
take. Assuming that the harassing behavior that Burdett-Foster identifies—BCN’s
contemplating but not actually requesting a second opinion, BCN’s assessing whether four to
five breaks per hour left enough time for Burdett-Foster to perform her work, and a supervisor’s
monitoring her bathroom use—are true, this behavior does not amount to a failure to
accommodate. Burdett-Foster does not allege that BCN or any of its employees actually said or
did anything to discourage or prevent her frequent use of the bathroom. Rather, the record
demonstrates that BCN accommodated Burdett-Foster and permitted her to use the bathroom as
much as necessary.
Accordingly, the district court properly granted summary judgment on Burdett-Foster’s
failure-to-accommodate claim.
B.
Burdett-Foster also contends that BCN discriminated against her because of her disability
in violation of the ADA. To establish this claim, Burdett-Foster must first present prima facie
evidence that: (1) she is disabled; (2) she is otherwise qualified; (3) she suffered an adverse
employment action; (4) her employer knew or had reason to know of her disability; and (5) the
position remained open while the employer sought other applicants or the disabled individual
was replaced. Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 314-17, 321 (6th Cir. 2012)
(en banc). If Burdett-Foster can establish a prima facie case, then the burden shifts to BCBS to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. E.g., Plant
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v. Morton Int’l, Inc., 212 F.3d 929, 936 (6th Cir. 2000). If BCBS does so, then Burdett-Foster
would bear the burden of proving that BCBS’s proffered reason is a pretext for unlawful
discrimination. Id.
Burdett-Foster argues that there are genuine issues of material fact as to whether BCBS
discriminated against her by first not allowing her time to “get [herself] situated with [her]
depression,” and then by terminating her because of her disability. Presumably, Burdett-Foster’s
first contention is one of failure-to-accommodate. As discussed above, the record unequivocally
indicates that BCN allowed her to go on STD leave for her depression twice.
Assuming that Burdett-Foster makes a prima facie showing of disability discrimination
based on BCN’s terminating her employment, BCBS offered a legitimate, nondiscriminatory
reason for Burdett-Fosters’ termination: her seven-day consecutive unexcused absences. See
generally Walborn v. Erie Cnty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998) (“[A]n
employee’s work violations constitute a legitimate, non-discriminatory reason for adverse
employment decisions.”). Because Burdett-Foster had been absent for more than three days, her
termination complied with the Master Labor Agreement between BCBS and the UAW.
Moreover, Burdett-Foster testified that she did not know of any individuals—disabled or not—
who had failed to report to work for more than three days and were not fired; conversely,
Burdett-Foster knew of a nondisabled employee who had been terminated for failing to come to
work. Burdett-Foster also admitted that she could not point to any nondisabled persons who had
been treated more favorably than she had.
Because BCBS articulated a legitimate nondiscriminatory reason for its action, Burdett-
Foster bears the burden of proving that this proffered reason for her termination is actually
pretext for prohibited discrimination. To prove pretext, a plaintiff must show “that the proffered
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reason either (1) has no basis in fact, (2) was not the actual reason, or (3) is insufficient to
explain the employer’s action.” Risch v. Royal Oak Police Dep’t, 581 F.3d 383, 391 (6th Cir.
2009). Burdett-Foster does not specify the basis on which she attempts to prove pretext; rather,
she offers three pieces of evidence which she claims create genuine disputes of material fact
regarding pretext such that summary judgment was inappropriate.
Burdett-Foster first contends that she was given two return-to-work dates after her second
suspension—January 18, 2012 and January 21, 2012—and that these competing dates indicate
pretext. Our review of the record—including Burdett-Foster’s record citations—does not
support her claim that she was given two different dates; rather, the record indicates that BCN
told her to return to work on January 18. Moreover, even if she had been given competing dates,
her pretext argument is unavailing. If Burdett-Foster was supposed to return to work on January
21, she still would have been absent for three consecutive work days (January 24 through
January 26), and BCBS thus still had justification to fire her.
Burdett-Foster next attempts to prove pretext by arguing that BCN ignored “disabling
paperwork filed by her doctor to extend her disability.” Again, this contention is wholly
unsupported by the record. The only evidence Burdett-Foster offers is a January 17 note from
her counselor which states “suggest not to return to work.” Neither Burdett-Foster nor her doctor
provided any notice that Burdett-Foster needed a leave of absence beginning on January 18,
2012, and the vague note from her counselor does not constitute “disabling paperwork.”
Moreover, Burdett-Foster did not submit a request to extend her STD leave. Accordingly, this
note does not provide sufficient evidence of pretext to withstand summary judgment.
Finally, Burdett-Foster offers BCN’s “ordering a ‘fit for duty’ examination during a
disability and which, under the circumstances, was not related to her duty and thus not allowed”
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as evidence of pretext. Burdett-Foster, however, offers no evidence to support her statement that
providing backup telephone support was not part of her job duties. Instead, the record
demonstrates that her department, including her more senior coworkers, performed backup
telephone work. BCN initially accommodated Burdett-Foster when she said she was unable to
complete training. After over a month without improvement, BCN’s request for a fitness-for-
duty exam to assess Burdett-Foster’s condition does not suggest pretext.
Burdett-Foster continues to claim that BCN’s terminating her based on her absences was
actually pretext for firing her because of her disability, but she does not support this contention
with evidence from the record. Bare allegations that disputes of material fact exist are
insufficient to withstand summary judgment. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at
248-52. Accordingly, the district court did not err in granting summary judgment on her ADA-
discrimination claim.
C.
Although Burdett-Foster’s Statement of the Issues mentions retaliation under both the
ADA and Title VII, the substance of her argument only addresses Title VII retaliation.
Accordingly, we review only her Title VII retaliation claim. A plaintiff may prove retaliation
using either direct or circumstantial evidence, and we assess claims relying on circumstantial
evidence using the McDonnell Douglas burden-shifting framework. E.g., Spengler v.
Worthington Cylinders, 615 F.3d 481, 491 (6th Cir. 2010).
To make a prima facie retaliation claim, “a plaintiff must establish that (1) she engaged in
a protected activity, (2) the defending party was aware that the claimant had engaged in that
activity, (3) the defending party took an adverse employment action against the employee, and
(4) there is a causal connection between the protected activity and adverse action.” Mengelkamp
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v. Lake Metro. Hous. Auth., 549 F. App’x 323, 330 (6th Cir. 2013) (citing Canitia v. Yellow
Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990)). A plaintiff must show that a reasonable
employee would have found the employer’s action materially adverse—i.e., that a reasonable
employee would have been dissuaded from making or supporting a discrimination claim.
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006). Moreover, a plaintiff must prove
that the protected activity was a “significant factor” in the adverse action. See Polk v. Yellow
Freight Sys., 876 F.2d 527, 531 (6th Cir. 1989) (quoting Taylor v. GMC, 826 F.2d 452, 456 (6th
Cir. 1987)). To establish that the protected activity was a significant factor, the plaintiff must
show that the activity was one of the reasons for the defendant’s actions. Polk, 876 F.2d at 531.
If the plaintiff makes a prima facie case, the burden then shifts to defendant to “provide a
legitimate, nondiscriminatory reason” for its actions. Warf v. U.S. Dep’t of Veterans Affairs,
713 F.3d 874, 879 (6th Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). If the employer provides a nondiscriminatory reason for its actions, the burden shifts
back to the plaintiff to show that the decision was pretext for discrimination. McDonnell
Douglas, 411 U.S. at 804-05.
In November or December 2010, Gibson remarked at a work function at which Burdett-
Foster was present that he was the “head n***** in charge.” Burdett-Foster contends that after
she complained to HR and the Union about Gibson’s remark, he and her direct supervisor, Albert
Walgenbach, began harassing her and mistreating her. Burdett-Foster testified that Walgenbach
peered at her from around corners, followed her to the bathroom and waited outside with his
arms folded on a daily basis, listened to her phone conversations, and falsified her production
records. Burdett-Foster eventually asked Walgenbach to stop following her; he said nothing in
response and continued to follow her.
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Burdett-Foster v. Blue Cross Blue Shield of Michigan
As to Gibson, Burdett-Foster maintains that he yelled at her a number of times, while not
treating other subordinates that way. Human Resources investigated Gibson’s alleged
harassment complaint but could not substantiate it. In December 2011, after having heard from
HR regarding her first complaint, Burdett-Foster filed another substantially similar complaint.
Burdett-Foster alleges that she was further harassed and eventually terminated in retaliation for
this complaint. Assuming that this complaint coupled with her eventual termination satisfies the
first three elements of a Title VII retaliation claim, the fourth element, causation, is problematic
for Burdett-Foster.
To support her retaliation claim, Burdett-Foster makes sweeping statements such as
“emails between Gibson, Comp One and other of Defendant’s management clearly demonstrate
that Gibson was more than eager to be rid of the Plaintiff, despite almost a dozen years of good
work performance on her part. Eager, either because she had complained of his treatment of her
and his racial remark . . . .” A review of these emails does not substantiate Burdett-Foster’s
claim that she was harassed in response to her having lodged a complaint. Despite robust
correspondence with BCN, Burdett-Foster never mentioned any incidents with Gibson or other
supervisors.
Turning to Burdett-Foster’s claim that her termination itself was retaliatory, the seven
months between her initial complaint and her termination tend to cut against her argument.
Temporal proximity alone does not necessarily imply causation. See, e.g., Chandler v. Specialty
Tires of Am. (Tenn.), Inc., 283 F.3d 818, 826 (6th Cir. 2002). We have held that a four-month
gap between the protected conduct and alleged retaliation was too long to support an inference of
retaliation. See Imwalle v. Reliance Med. Prods., 515 F.3d 531, 550 (6th Cir. 2008) (citing
Cooper v. North Olmsted, 795 F.2d 1265, 1272 (6th Cir. 1986)). Burdett-Foster points to no
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evidence indicating that BCN’s reason for terminating her was retaliation for her complaint,
rather than a response to days of work she missed without explanation. Accordingly, the district
court did not err in granting summary judgment on her retaliation claim.
V.
Finally, Burdett-Foster argues that the district court erred by granting BCBS’s motion for
summary judgment before the close of the extended discovery period and without first holding a
hearing. But, as she acknowledges, due process does not always require oral argument. See
FCC v. WJR, Goodwill Station, 337 U.S. 265, 275-76 (1949).
Turning to her discovery argument, Burdett-Foster maintains that additional discovery
was necessary to clarify certain issues of disputed fact. Federal Rule of Civil Procedure 56(b)
states that “[u]nless a different time is set by local rule or the court orders otherwise, a party may
file a motion for summary judgment at any time until 30 days after the close of all discovery.”
Per the district court’s scheduling order—which, unlike the discovery deadline, had not been
modified—BCBS timely filed its motion for summary judgment on September 12, 2013. Fed. R.
Civ. P. 56(d)1 provides that “[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) give an opportunity to properly support or address the fact; (2) allow time to obtain affidavits
or declarations or to take discovery; or (3) issue any other appropriate order.” Here, however,
Burdett-Foster did not trigger Rule 56(d) because she did not file an affidavit or declaration
explaining why she could not present facts that were essential to oppose BCBS’s motion, what
those facts were, or why they had not been previously discovered. Accordingly, we decline to
review this issue. See Plott v. General Motors Corp., 71 F.3d 1190, 1196 (6th Cir. 1995)
1
The substance of Rule 56(d) appeared as Rule 56(f) before the 2010 amendments to the Federal Rules of Civil
Procedure, and throughout her brief, Burdett-Foster refers to Rule 56(f) instead of 56(d).
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(explaining that without an affidavit or a motion that gives the district court a chance to rule on
the need for additional discovery, this Court will not address whether there had been adequate
time for discovery).
VI.
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment
in favor of BCBS.
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