Joanne Russ v. Memphis Light Gas & Water Div.

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0698n.06
No. 16-6570
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JOANNE P. RUSS ) Dec 21, 2017
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MEMPHIS LIGHT GAS & WATER DIVISION ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Defendant-Appellee. )
)
)
BEFORE: COLE, Chief Judge; ROGERS and GRIFFIN, Circuit Judges.
ROGERS, Circuit Judge. In this employment dispute, plaintiff Joanne Russ had worked
for defendant Memphis Light Gas & Water Division (“MLGW”) for more than three decades
when she suffered a stroke in 2009 that impaired some of her cognitive functioning. Although
Russ returned to work in the fall of 2009, she claims that she was subsequently discriminated
against on the basis of her disability, race, and gender, which led her to retire in January 2014.
Immediately after retiring, Russ filed a charge with the Equal Employment Opportunity
Commission that alleged discrimination only on the basis of her disability. She then sued
MLGW, advancing a host of claims under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. The district court granted summary judgment to MLGW on all but two of Russ’s claims:
constructive discharge and an ADA claim based on Russ’s request for a workweek limited to
No. 16-6570
Russ v. Memphis Light Gas & Water Division
40 hours. These remaining claims were tried to a jury, which rendered a verdict in favor of
MLGW. On the claims that went to trial, Russ’s only challenges on appeal are to evidentiary
determinations that, on review, do not reflect any abuse of discretion. Russ also challenges the
district court’s earlier grant of summary judgment as to the other claims. The district court,
however, properly granted summary judgment on those claims.
I.
Russ began working for MLGW in 1977. In 1978, she filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging race and gender discrimination,
which the parties settled. Despite this early friction, by 1999 Russ had been promoted to
Supervisor of the Compensation Department. This position required her to work 60 to 80 hours
per week to complete her assignments. During this period, Russ did not have to arrive at work
by any particular time. Instead, she would stay as late as necessary to complete her work, and
then come in late the next day to “offset” the extra hours. From 2005 to 2008, Russ worked
under Vice President Armstead Ward and, with Ward’s permission, continued to arrive late and
stay late.
This overwork caused Russ stress, which in turn took a toll on her health. In March
2009, she was diagnosed with Type 2 Diabetes. Shortly thereafter, in July 2009, she suffered a
stroke, requiring her to take sick leave. The stroke hurt her memory and her abilities to speak
and multi-task. It also caused her to become easily confused and frustrated. In particular, after
the stroke Russ found driving in traffic to be stressful.
In October 2009, Russ’s physician, Dr. Robert McEwan, allowed her to return to work,
but recommended that she work no more than 40 hours per week. MLGW agreed to this
restriction. After returning, Russ still did not have to be at work at any set time: as long as she
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stayed late enough to finish her work, she could come in at 10 or 11 o’clock the next morning.
However, despite MLGW’s agreement that she could limit her work week to 40 hours, Russ
found that she still had to work more than 40 hours per week to complete her assignments.
In 2013, MLGW’s attitude toward Russ’s late start time changed. On February 11, 2013,
Russ’s supervisor, MLGW Vice President Dr. Von Goodloe, orally reprimanded her for
tardiness. Goodloe recorded the reprimand in an internal memorandum, in which he wrote that
Russ had agreed to arrive at work no later than 9:30 a.m. from then on. For purposes of
summary judgment, the parties agreed that this reprimand pressured Russ to work more than
40 hours per week.
Sometime in 2013, Russ requested three additional employees to help with her work.
MLGW considered this request at a budget meeting on August 27, 2013, which Russ did not
attend. At the meeting, the President and CEO of MLGW, Jerry Collins, criticized Russ’s
working habits. MLGW ultimately declined to give her more employees.
When Russ returned from vacation on September 3, 2013, Goodloe told her to arrive at
work by 8:30 a.m. from then on. Soon thereafter, Russ filed an internal discrimination
complaint, which alleged that MLGW had retaliated against her for her stroke-related disabilities
by criticizing her during the budget meeting and by denying her a promotion to Manager. The
complaint also expressed her desire to move her start time back to 9:30 a.m., which Russ claimed
was necessary because early morning traffic contributed to her stress.
On October 24, MLGW held an interactive process meeting in response to Russ’s internal
complaint. At this meeting, Russ explained that, despite the nominal 40-hour-per-week
accommodation, she was still having to work more than 40 hours each week to complete her
assignments. Russ also said that she was disabled by stress, which had caused her stroke and
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was exacerbated by driving in traffic, and that she still could not multi-task and was having
difficulty thinking. She requested an accommodation to move her start time to 9:30 a.m., and
again requested additional support staff.
After the meeting, on November 14, 2013, Dr. McEwan wrote a letter to MLGW
suggesting Russ’s start time be moved back to 9:30 a.m. so she would not have to endure the
stress of the “vexing and busy” early morning Memphis traffic. The letter also reiterated that
Russ should not work more than 40 hours per week. MLGW responded with a letter seeking to
clarify whether Russ’s disability was stress, and whether a 9:30 a.m. start time and 40-hour
restriction were “medically necessary.” On January 14, 2014, Dr. McEwan wrote back that Russ
attributed her stroke to stress caused by her job and traffic, and that “[p]erhaps if Ms. Russ’s
hours could be re-arranged she and [M]LGW could co-exist until she retires.” Following Dr.
McEwan’s second letter, on January 27 MLGW denied Russ’s accommodation requests. In its
denial letter, MLGW explained that, despite its requests for information about Russ’s condition,
Dr. McEwan’s letter “did not disclose any disabling effects from this condition or medical
restrictions.”
Russ announced her retirement on February 14, 2014. One day later, she filed a pro se
charge of discrimination with the EEOC. On the charge, she checked the boxes indicating
discrimination based on “Retaliation” and “Disability,” but left all other boxes blank. In the
narrative portion of the charge, Russ explained the alleged discrimination as follows:
On January 17, 1977, I was hired with [MLGW]. I am currently in the position of
Supervisor of Compensation Administration. On November 20, 2009, I requested
an accommodation regarding my disability and was granted the request (work
40 hours per week). Before my disability, I was working 60-80 hours a week. In
July 2013, I asked to be promoted to the position of Manager due to my
responsibilities [in] the department. No reason was given for the denial.
On August 27, 2013, a budget meeting was held. I requested three (3) employees
(two (2) Professional and one (1) Clerical[)]. I was denied this request and the
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comment was made by Jerry R. Collins, President & CEO that I needed the
additional employees to do my work because I am never at work. This request
was denied. On September 4, 2013, I was informed by Von Goodloe, Vice
President of Human Resources that I am expected to report to work no later than
8:30 a.m. each day and complete no less than the normal scheduled eight
(8) hours. On October 18, 2013, I requested another accommodation (to have my
report time changed from 8:30 a.m. to 9:30 a.m.). On January 27, 2014, I was
denied the request.
I believe I have been discriminated against because of my disability and in
retaliation for requesting an accommodation due to my disability, in violation of
the Americans with Disability Act, Amendment Act (ADAAA).
Thus, on its face, Russ’s charge alleged discrimination on account of her disability, but
mentioned nothing about discrimination for any other reason (such as gender or race).
A month before filing the charge, Russ had also submitted an EEOC intake
questionnaire.1 On this form, in response to the question, “What is the reason (basis) for your
claim of employment discrimination?”, she checked the boxes for “Race,” “Age,” and
“Retaliation.” Curiously, however, Russ left the “Disability” box blank. In response to the
question, “What happened to you that you believe was discriminatory?”, Russ wrote that, at the
August 2013 budget meeting, she had been penalized for not working enough. She further wrote
that she believed this action was discriminatory because she had a disability from her 2009
stroke, and because she had previously filed a successful EEOC charge (although the form did
not elaborate as to the subject or date of the earlier charge). On the next page of the form, in
response to the question, “What is the disability that you believe is the reason for the adverse
action taken against you?”, Russ wrote: “Stress—working 60+ hours per week, and traveling in
heavy traffic.” So, although Russ checked “Race” and “Age” but not “Disability” on the intake
1
Although the intake questionnaire is dated January 6, 2013, it refers to events that occurred in
August and September 2013, and therefore was likely submitted on January 6, 2014. According
to the form, the purpose of an intake questionnaire is “to solicit information about claims of
employment discrimination, determine whether the EEOC has jurisdiction over those claims, and
provide charge filing counseling, as appropriate.”
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form, the narrative portions of this form focused on Russ’s disability as the cause of MLGW’s
alleged discrimination. The possible exception would be the bare mention of a previous EEOC
Charge, which could have referred to Russ’s 1978 charge alleging race and gender
discrimination. However, the form did not specify which EEOC charge Russ meant, nor did it
state why that charge had been filed.
The EEOC issued a right-to-sue letter, and Russ filed suit in the U.S. District Court for
the Western District of Tennessee. The district court interpreted Russ’s amended complaint to
include the following claims: (1) retaliation; (2) hostile work environment; (3) constructive
discharge; and (4) three ADA failure-to-accommodate claims, based respectively on MLGW’s
denial of Russ’s requests for (i) more employees, (ii) a later start time, and (iii) a 40-hour work
week. Respecting the retaliation claim, the parties disputed whether the amended complaint
alleged a retaliation claim only under Title VII or under both Title VII and the ADA. The
amended complaint’s “Causes of Action” section contained just one somewhat ambiguous
sentence: “Defendant’s actions constitute unlawful discrimination on the basis of disability in
violation of the ADAA [sic] and on the basis of retaliation, in violation of Title VII, 42 U.S.C.
§ 2000e.” At summary judgment, MLGW argued that this alleged only a claim of retaliation
under Title VII, while Russ maintained it asserted an ADA retaliation claim as well.
The district court granted summary judgment to MLGW on three groups of Russ’s
claims: (1) the claims for retaliation under the ADA and Title VII; (2) the hostile-work-
environment claim; and (3) the ADA claims based on MLGW’s denial of Russ’s requests for
more employees and a later start time. The district court first concluded that Russ’s amended
complaint did not allege an ADA retaliation claim, and that she had failed to exhaust
administrative remedies with respect to her Title VII retaliation and ADA hostile-work-
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environment claims. As for the ADA claim based on Russ’s request for more employees, the
district court held that Russ failed to carry her initial burden of proposing a reasonable
accommodation. And the other ADA claim—for denial of Russ’s request for a later start time—
failed as a matter of law because “the ADA does not require an employer to accommodate an
employee’s commute.”
However, the district court denied MLGW summary judgment on Russ’s other two
claims, namely Russ’s constructive discharge claim and her ADA claim based on the denial of
her 40-hour-work-week request. These claims were tried to a jury, which returned a verdict in
favor of MLGW.
Russ now appeals, challenging the district court’s grant of summary judgment to MLGW
on her retaliation claims, her hostile-work-environment claim, and two of her three ADA failure-
to-accommodate claims. She also argues that the district court erred in several of its evidentiary
rulings at trial. However, each of these contentions fails. First, Russ’s complaint, viewed in
light of her subsequent deposition testimony, did not provide fair notice that she was asserting an
ADA retaliation claim. Second, Russ did not exhaust administrative remedies with respect to her
Title VII retaliation claim or her ADA hostile-work-environment claim because her EEOC
charge did not provide notice that she intended to bring either of these claims. Third, both of her
ADA failure-to-accommodate claims fail too: one because Russ failed to make out a prima facie
case, and the other because she forfeited the issue on appeal. Finally, the evidentiary errors that
Russ claims occurred at trial were either not errors at all or were harmless.
II.
The district court correctly granted summary judgment to MLGW on (A) Russ’s ADA
retaliation claim, (B) her Title VII retaliation claim, (C) her ADA hostile-work-environment
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claim, and (D) her ADA failure-to-accommodate claims based on MLGW’s refusal to supply her
with more employees and to permit her a later start time. Contrary to Russ’s contentions, in
doing so the district court did not misstate or misapply the summary judgment standard.
A.
The district court was correct to grant MLGW summary judgment on the ADA retaliation
claim because Russ’s amended complaint, coupled with her subsequent deposition testimony, did
not provide fair notice that she was advancing such a claim. As mentioned, the amended
complaint contained the following language regarding causes of action: “Defendant’s actions
constitute unlawful discrimination on the basis of disability in violation of the ADAA [sic] and
on the basis of retaliation, in violation of Title VII, 42 U.S.C. § 2000e.” On its face, this
language most naturally suggests that Russ was bringing a retaliation claim only under Title VII,
not under the ADA as well. This conclusion is reinforced by deposition testimony that Russ
gave during discovery:
[MLGW’s Lawyer]: Defendant’s actions constitute unlawful discrimination on
the basis of disability in violation of the ADAA and on the basis of retaliation in
violation of Title VII 42 U.S.C. [2000e]. That’s your claim, right, as far as you
know?
[Russ]: Disability and retaliation, yes.
[MLGW’s Lawyer]: Yes, ma’am. And—and the basis for it would be the
statutes that govern disability law and the retaliation for—
[Russ]: For—
[MLGW’s Lawyer]: —exercising your right to claim a disability?
[Russ]: No. The retaliation is based on filing in ’78, the—my color for—for Jerry
Collins, being a female, I guess, for Jerry Collins, to take my work schedule away
from me after I’ve been having it from ’99 to 2013.
[MLGW’s Lawyer]: Anything else?
[Russ]: Not giving me the—not bidding the manager position, putting it in the
budget so it could be bid, and not giving me the money for the project.
Although this testimony is not crystal clear, Russ appears to flatly deny that her
retaliation claim was related to her disability, and to assert instead that it was based on retaliation
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for her 1978 EEOC charge, which alleged race and gender discrimination. This accords with
other deposition testimony given by Russ. In response to questioning about why Russ believed
Collins denied her a promotion and criticized her work habits at the August 2013 budget
meeting, she stated that “it was retaliation. It was based on my race.” Later, MLGW’s lawyer
asked Russ to describe any other retaliation against her, and Russ said: “Everything that led up to
[the August 2013 budget meeting] . . . lead[s] me to believe from the bottom of my heart that it is
based off my race and the fact that I filed in ’78.” The MLGW lawyer continued, “You’re
saying that everything that happened to you that you’ve described to us since 1978 that held you
down from where you thought you should be in [MLGW] was the result of a retaliation that was
carried out against you for filing your charges in 1978?” And Russ responded, “It was part of it.
And the other part is the fact that I’m just black. That’s true.”
Thus, even if Russ’s amended complaint is ambiguous as to the basis for her retaliation
claim, her subsequent testimony is not. Russ’s ADA retaliation claim therefore fails because her
amended complaint did not give MLGW fair notice that she was making such a claim. We
addressed a similar situation in Carter v. Ford Motor Co., 561 F.3d 562 (6th Cir. 2009). There, a
Ford employee was fired twice: once in 2005 for missing work without properly extending
medical leave, and then, after being reinstated, she was fired again in 2006 for a workplace
altercation. Id. at 563. The employee sued Ford under the Family Medical Leave Act. In
deposition testimony, she unequivocally stated that the lawsuit did not cover the time period of
her 2005 termination, and instead insisted that it related only to a request for medical leave she
purported to have made just before being terminated in 2006. Id. at 565. When Ford filed for
summary judgment, however, the employee changed her tune and argued that the claim
encompassed the original 2005 termination. We held that, despite ambiguity in the complaint,
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the employee’s “deposition testimony expressly notified Ford that her claim focused on . . . the
2006 request for medical leave,” not the 2005 termination. Id. at 568. The employee’s
deposition testimony had deprived Ford of fair notice that the 2005 termination was at issue in
the case, and so it was too late for the employee to expand her claim at summary judgment. Id.
at 568–69.
The same analysis applies here. Even if Russ’s amended complaint was ambiguous, any
ambiguity was removed when she repeatedly insisted in deposition testimony that her retaliation
claim was only related to racial discrimination and her 1978 EEOC charge, which alleged
discrimination on the basis of race and gender. Russ’s numerous statements that she was
claiming retaliation only on the basis of race and gender deprived MLGW of fair notice that she
was asserting an ADA retaliation claim too, especially given that the plain language of her
amended complaint appeared to speak only of Title VII retaliation. Therefore, the district court
appropriately granted MLGW summary judgment on the ADA retaliation claim.
B.
MLGW was also entitled to summary judgment on Russ’s Title VII retaliation claim.
Russ’s EEOC charge only mentioned discrimination on the basis of disability, and so she failed
to exhaust administrative remedies for a claim under Title VII.
The exhaustion doctrine precludes an employee from suing under Title VII or the ADA
unless she has exhausted her administrative remedies. To exhaust, an employee must file a
charge of discrimination with the EEOC that includes all claims the employee intends to bring in
district court. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010). Only claims
that are included in the charge or are “reasonably related to or grow out of the factual allegations
in the EEOC charge” may be heard in federal court. Id. at 361–62.
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The allegations in Russ’s charge were insufficient to exhaust her administrative remedies
for a Title VII retaliation claim. Title VII only protects against discrimination on the basis of
certain traits, namely “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Here, on Russ’s charge she checked the boxes for “Retaliation” and “Disability,” but left all
others blank (including those marked “Race,” “Color,” and “Sex”). The narrative portion of the
charge said nothing about discrimination on the basis of race or gender. Moreover, the charge
concluded: “I believe I have been discriminated against because of my disability and in
retaliation for requesting an accommodation due to my disability, in violation of the [ADA].”
The charge was thus completely devoid of allegations of discrimination on the basis of any of the
traits protected by Title VII, and instead expressly alleged that Russ had been discriminated
against on the basis of her disability, which Title VII does not prohibit. Under these
circumstances, a Title VII retaliation claim was neither reasonably related to the factual
allegations in the charge, nor could it have grown out of them. Therefore, Russ did not exhaust
her administrative remedies for a Title VII retaliation claim.
Russ argues that Spengler v. Worthington Cylinders, 615 F.3d 481 (6th Cir. 2010),
compels a different result. This reliance is misplaced. In Spengler, the plaintiff’s EEOC charge
alleged that, after he complained about his supervisor’s age-related bias, the supervisor
terminated him due to a “personal vendetta.” Id. at 490. We held that, even though the plaintiff
had not checked the retaliation box on his charge, the allegations were enough to put the EEOC
on notice of an age-related retaliation claim. Id. Here, unlike Spengler, the allegations in Russ’s
charge had nothing to do with discrimination based on any relevant characteristic, i.e., those
protected by Title VII. Therefore, as previously discussed, the factual allegations in the charge
did not provide notice that Russ was pursuing a Title VII retaliation claim.
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While it is true that Russ did allude to racial discrimination on her EEOC intake
questionnaire, several of our sister circuits have held that allegations contained only in an intake
questionnaire may not be considered for exhaustion purposes. See Barzanty v. Verizon PA, Inc.,
361 F. App’x 411, 415 (3d Cir. 2010); Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401,
408–09 (4th Cir. 2013); Teffera v. N. Tex. Tollway Auth., 121 F. App’x 18, 21 (5th Cir. 2004);
Novitsky v. Am. Consulting Eng’rs, L.L.C., 196 F.3d 699, 702 (7th Cir. 1999); Green v. JP
Morgan Chase Bank Nat’l Ass’n, 501 F. App’x 727, 731–32 (10th Cir. 2012). Even assuming
that intake questionnaires may be considered, the references to race in Russ’s questionnaire were
oblique at best, and accordingly were insufficient to notify the EEOC or MLGW of a possible
Title VII claim.
On the intake questionnaire, Russ checked the box indicating that “Race” was one of the
bases for her claim of discrimination. But the questionnaire contained no clear factual
allegations of racial discrimination to explain this checkmark. In response to the question, “Why
do you believe [the employer’s] actions were discriminatory?”, Russ wrote: “I am an exempt
management employee. I have a disability from my 2009 stroke, and I have file[d] [EEOC]
charges before and won.” There was no explanation of when or why these EEOC charges were
filed. Thus, even if this was a reference to Russ’s 1978 EEOC charges that alleged
discrimination on the basis of race and gender, the questionnaire’s bare mention of previous,
unspecified EEOC charges was insufficient to alert the EEOC (let alone MLGW, who would not
have received this form) that Russ was claiming retaliation for having once alleged race and
gender discrimination. Because the questionnaire contained no other mention of discrimination
on the basis of race or gender (or any other characteristic protected by Title VII), it did not
provide notice of a potential Title VII claim.
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Additionally, while it is possible under certain circumstances for an intake questionnaire
itself to constitute a charge, see Fed. Express Corp. v. Holowecki, 552 U.S. 389 (2008), Russ
does not argue that is the case here. Nor could she. Under Holowecki, a filing other than a
charge will not be deemed a charge unless “an ‘objective observer’ would believe that the filing
‘taken as a whole’ suggests that the filer ‘requests the agency to activate its machinery and
remedial processes.’” Williams v. CSX Transp. Co., 643 F.3d 502, 508–09 (6th Cir. 2011)
(quoting Holowecki, 552 U.S. at 398, 402). Here, Russ’s intake questionnaire contains no
language that could be construed as asking the EEOC to take action against MLGW, and so it
does not qualify as a charge on its own.
Therefore, even construing Russ’s pro se charge liberally, it was insufficient to exhaust
administrative remedies for a Title VII retaliation claim, and summary judgment was appropriate
on this basis.
C.
Russ’s ADA hostile-work-environment claim, too, was not properly exhausted. Her
charge did not expressly include a claim of hostile work environment. Therefore, her charge
could only exhaust administrative remedies for a hostile-work-environment claim if such a claim
was reasonably related to or could have grown out of the factual allegations in the charge. See
Younis, 610 F.3d at 362. However, for a hostile-work-environment claim to be reasonably
related to or grow out of an employee’s charge, the charge must allege more than isolated
discrete acts of discrimination. Here, Russ’s charge alleges only isolated acts over a lengthy
period, and it was therefore insufficient to exhaust her administrative remedies with respect to
this claim.
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To establish a claim of hostile work environment, “a plaintiff must present evidence of
harassment that ‘unreasonably interferes with his work performance and creates an objectively
intimidating, hostile, or offensive work environment.’” Id. (quoting Grace v. USCAR, 521 F.3d
655, 678 (6th Cir. 2008) (alterations adopted)). Because this standard requires an employer’s
discriminatory conduct to be pervasive, allegations in an EEOC charge of only an isolated and
discrete act or acts are insufficient to provide notice of—and thus to exhaust administrative
remedies for—such a claim.2 Id. For instance, in Younis, the plaintiff’s EEOC charge alleged
“three or four isolated comments by his peers that occurred over a three-year period.” Id. We
concluded that these three or four isolated comments were discrete acts, allegations of which
were insufficient to exhaust the plaintiff’s administrative remedies for a hostile-work-
environment claim.
The same is true here. Russ’s charge discussed four acts over the course of roughly six
months: (1) in July 2013, Russ was denied a requested promotion; (2) on August 27, 2013,
Collins criticized Russ’s work habits; (3) also on August 27, 2013, Russ’s request for additional
employees was denied; and (4) on January 27, 2014, Russ’s request for a later start time was
denied. As in Younis, allegations of these four discrete acts, which spanned six months, were not
enough on their own to provide notice that Russ was alleging a hostile work environment. Russ
therefore did not exhaust her administrative remedies with respect to this claim.
2
Although Younis involved a Title VII hostile-work-environment claim, its holding applies here
because the elements of a hostile-work-environment claim are the same whether brought under
the ADA or Title VII. See Trepka v. Bd. of Educ. of the Cleveland City Sch. Dist., 28 F. App’x
455, 460–61 (6th Cir. 2002) (per curiam).
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D.
The district court also properly granted MLGW summary judgment on Russ’s ADA
failure-to-accommodate claims related to her requests for more employees and a later start time.
First, with respect to Russ’s more-employees claim, the district court correctly
determined that this claim fails because Russ did not meet her initial burden to propose a
reasonable accommodation. An employee raising a failure-to-accommodate claim bears the
initial burden to propose an accommodation that is reasonable. Regan v. Faurecia Auto. Seating,
Inc., 679 F.3d 475, 480 (6th Cir. 2012); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869
(6th Cir. 2007). Here, the accommodation that Russ requested was that MLGW provide her with
three more employees so that she could complete her work in 40 hours each week. Under the
ADA, it may be a reasonable accommodation to shift some of a disabled employee’s duties to
other employees, but only if the other employees assist with the disabled employee’s
nonessential duties. Bratten v. SSI Servs., Inc., 185 F.3d 625, 632 (6th Cir. 1999). Thus, it was
Russ’s burden to explain how the additional employees would assist only with her nonessential
duties, because if they would assist with her essential duties, the accommodation would not be
reasonable. However, Russ did not explain what these additional employees would do, other
than to suggest vaguely that they would help with her general workload. This case is thus like
Bingaman v. Procter & Gamble Co., No. 04-3584, 2005 WL 1579703 (6th Cir. July 6, 2005)
(unpublished), in which we held that the plaintiffs did not make out a prima facie ADA case
when they “failed to articulate with any specificity what types of job tasks would be shifted to
other [employees],” because without that information, it would be impossible to determine
“whether such accommodations would be reasonable or whether they would result in the shifting
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of ‘essential’ work tasks to other employees.” Id. at *6. Accordingly, Russ did not meet her
initial burden of proposing a reasonable accommodation, and this claim was properly rejected.
Second, Russ has forfeited her ADA claim based on MLGW’s refusal to grant her a later
start time. Although Russ’s brief lists this issue in the heading for Section I of its argument, the
brief includes no substantive argument on this point. Russ has therefore forfeited consideration
of this issue on appeal. See Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir.
2003).
E.
Russ argues that the district court misstated the standard for summary judgment such that
it slanted impermissibly in favor of the movant. However, contrary to Russ’s contention, the
district court amply and correctly laid out the proper summary judgment standard. Moreover,
although Russ complains that the district court neglected to expressly state that all justifiable
inferences must be drawn in the non-movant’s favor, she does not suggest any particular
inferences that, in her view, the district court should have, but did not, draw in her favor. Nor
does she specifically suggest any other way in which the summary judgment standard was
misapplied. Accordingly, this argument is meritless.
III.
Russ’s remaining contention is that the district court made three erroneous evidentiary
rulings at trial. However, the first ruling of which Russ complains was not error at all, and the
other two, even if errors, do not warrant reversal because they did not harm Russ’s substantial
rights.
First, Russ points to MLGW’s opening statement, in which MLGW’s attorney showed
the jury Russ’s EEOC charge and explained that it included allegations that MLGW had denied
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Russ’s requests for more employees and a later start time. To narrow the issues before the jury,
MLGW’s attorney truthfully told them that the district judge had already ruled that these denials
did not violate the ADA, and thus were no longer part of the case. Russ’s lawyer did not object
immediately. But later, outside the jury’s presence, Russ’s lawyer voiced her concern that the
jury might believe that, because the judge had already rejected some of Russ’s claims, that must
mean the rest were meritless too. The district court agreed that it should give the jury a
cautionary instruction. The court then instructed the jury: “Anything I may have ruled or
decided before the case began, you can ignore that . . . .” It also cautioned: “Don’t worry about
any other legal opinions I may have given during the trial, [or] before the trial.”
It is unclear what Russ’s complaint is—once her lawyer objected and brought the
problem to the district court’s attention, the court agreed with her and cautioned the jury against
drawing precisely the inference Russ was concerned about. This was not error at all. Moreover,
a district court’s evidentiary rulings are reviewed only for abuse of discretion, Nolan v. Memphis
City Schs., 589 F.3d 257, 264 (6th Cir. 2009), and since this ruling was not error it surely was not
an abuse of discretion.
Next, Russ complains that the district court allowed MLGW to engage in two lines of
questioning that resulted in allegedly prejudicial testimony given by Russ herself. These
arguments are unavailing, however, because Russ was not prejudiced by either exchange, and so
any error that may have occurred was harmless.
In the first line of questioning, the district court allowed MLGW’s attorney to ask Russ
about reprimands for tardiness she had received in 2002 and 2003. In an earlier sidebar, Russ’s
attorney had expressed concern that this questioning would prompt Russ to talk about an EEOC
charge she had successfully filed against her supervisor from that period. Russ’s attorney
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appeared primarily concerned that this testimony would be irrelevant and a waste of time,
although that is not entirely clear from the record. The district court permitted MLGW’s
attorney to ask about the reprimands. When MLGW’s attorney asked Russ whether the previous
supervisors who had complained about her tardiness were mistaken, Russ responded by
explaining that she had filed EEOC charges against the former supervisor who had reprimanded
her for tardiness. After the questioning continued on the subject of this former supervisor for a
little while, Russ’s attorney eventually objected that the questioning was “going down a rabbit
trail” about the supervisor, which appeared to be an objection for relevance. The objection was
overruled.
Russ’s challenge fails because she does not explain why this testimony was prejudicial.
Under Federal Rule of Evidence 103(a), a party may claim error in a ruling to admit or exclude
evidence “only if the error affects a substantial right of the party.” Thus, even assuming it was
error to permit this questioning, any error that did not affect Russ’s substantial rights was
harmless and would not provide a basis for reversal. An evidentiary error is harmless if it
appears, “with fair assurance, that the judgment was not substantially swayed by the error.”
Griffin v. Finkbeiner, 689 F.3d 584, 599 (6th Cir. 2012) (quoting Mike’s Train House, Inc. v.
Lionel, LLC, 472 F.3d 398, 409–10 (6th Cir. 2006) (alteration adopted)). Here, Russ does not
even explain why the testimony at issue was unfavorable to her, let alone how it could have
swayed the trial in favor of MLGW. The relevant testimony showed that Russ had previously
filed an EEOC charge against her supervisor at MLGW, and that the charge was successful.
Indeed, Russ testified that, after her charge, the supervisor was not permitted to have supervisory
authority over her, and she “took his job.” If anything, this testimony enhances Russ’s
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credibility and casts MLGW in a negative light. Thus, she has not shown how admission of this
testimony prejudiced her, and its admission was, at worst, harmless error.
In the other exchange of which Russ complains, MLGW’s attorney asked Russ about
certain paragraphs of her amended complaint. The parties had agreed that MLGW could publish
several paragraphs of the amended complaint to the jury while MLGW’s attorney questioned
Russ about them. MLGW’s lawyer then, without using the word “retaliation,” asked Russ about
paragraph 33 of her amended complaint (which contains the term “retaliation”). Russ responded
by adding that the paragraph included the term “retaliation.” MLGW’s attorney clarified that
“the word ‘retaliation’ is no longer in this case,” and Russ’s counsel agreed to stipulate that
retaliation was no longer part of the case. At no point in this exchange did Russ’s counsel object.
Russ now contends that the concept of retaliation—which Russ herself brought up—was
prejudicial. Russ does not quite explain why this mention of retaliation was prejudicial, but
presumably it was because it alerted the jury to the fact that Russ had originally alleged
retaliation and this claim had already been knocked out of the case. Because Russ did not object,
admission of this testimony is reviewed only for plain error. Fed. R. Evid. 103(e). This standard
requires Russ to show “(1) error, (2) that is plain, and (3) that affects substantial rights.” Fathera
v. Smyrna Police Dep’t, 646 F. App’x 395, 400 (6th Cir. 2016) (quoting Johnson v. United
States, 520 U.S. 461, 466–67 (1997)). If these conditions are met, “we may exercise our
discretion to review the error, ‘but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (quoting Johnson, 520 U.S. at 467). Russ does
not argue that she can make this difficult showing. Even if she did make such an argument, it
would fail because, as with the previous testimony, admission of this testimony did not affect her
substantial rights. Viewed in the context of the whole trial, this lone mention of retaliation was
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insignificant and far from enough to prejudice Russ’s rights, especially since the district court
had already given a curative instruction reminding the jury not to consider the court’s pre-trial
rulings.
IV.
The judgment of the district court is affirmed.
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