                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0256n.06

                                        Case No. 15-1620                             FILED
                                                                                  May 11, 2016
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


TODD DEISTER,                                       )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
AUTO CLUB INSURANCE                                 )       MICHIGAN
ASSOCIATION,                                        )
                                                    )       OPINION
       Defendant-Appellee.                          )
                                                    )


       BEFORE: SUHRHEINRICH, McKEAGUE, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Todd Deister (“Deister”) appeals the

district court’s order granting Defendant Auto Club Insurance Association’s (“Auto Club”)

motion for summary judgment. Deister filed an employment discrimination suit against Auto

Club under the Americans with Disabilities Act (“ADA”). The district court held that he failed

to set forth sufficient evidence to survive summary judgment with respect to his disability

discrimination and failure to accommodate claims, and that he was barred from bringing his

retaliation claim because he failed to exhaust his administrative remedies.

       For the reasons articulated below, we AFFIRM.
Case No. 1620 Deister v. Auto Club Insurance Ass’n


                                               I.

       On September 12, 2011, Deister began working for Auto Club as a claims adjuster. Prior

to his employment at Auto Club, he worked as a property claims adjuster for more than twenty-

five years. When not dispatched to a property claim location, Deister worked from home. His

direct supervisor was Christopher Ruby (“Ruby”).

       On March 8, 2012, while on an assignment to adjust property claims for tornado damage

in Kentucky, Deister began experiencing shakiness and poor concentration. After his work

computer stopped functioning, he suffered a panic attack. Deister emailed Ruby stating,

              I am leaving for home tonight due to panic/stress attacks and to meet with
       my doctor tomorrow. I will have my files with Aht. Please advise if you need
       anything else before I leave.

(Page ID # 435.)

       Upon receiving Deister’s message, Ruby replied,

       Todd, Sorry to hear that. Rob is going to come by to get the files. What about the
       losses you inspected did you write the estimates? Please checkout of the hotel you
       will not deploy back if able. Please let me know how you are. I hold (sic)
       everything is okay. Drive safe.

(Page ID # 435.)

       Beginning March 9, 2012, Deister took an indefinite medical leave from work. On

March 12, 2012, he faxed Auto Club Human Resources employee, Rosita Brockington

(“Brockington”) a “Disability Certificate” signed by Deister’s physician, Dr. Baldwin, indicating

that Deister suffered from an “acute stress reaction,” and that his prognosis was “good.” (Page

ID # 748.) The “Disability Certificate” also stated that the first day Deister would be unable to

work was March 9, 2012, and that he would be able to return to work on April 9, 2012.

       In a letter dated March 23, 2012, Auto Club acknowledged receiving Deister’s claim for

disability leave of absence.   The letter also explained some of Auto Club’s policies and

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Case No. 1620 Deister v. Auto Club Insurance Ass’n


procedures with regard to employees who take disability leave, such as an employee’s

employment status while on leave and how an employee’s paid time off is impacted while on

leave. Specifically the letter advised, “[y]ou may be replaced after 90 days of absence in a

rolling 12 month period (unless otherwise protected by Family and Medical Leave.)” (Page ID #

159.) Moreover, Auto Club’s employment policy guide stated that “failure to return to work

when released by the disability administrator or as instructed by the company may result in

termination.” (Page ID # 169.)

       The Hartford, which administered Auto Club’s disability benefit plan, approved Deister’s

short-term disability benefits claim, in a letter dated April 16, 2012. According to that letter,

Deister was to receive benefits from March 16, 2012 until May 31, 2012. A final extension

allowed him to receive benefits through July 31, 2012.

       On June 8, 2012, Ruby sent Deister a letter advising, in relevant part, that Auto Club

“holds an employee position open for 90 consecutive calendar days of disability” and that in

Deister’s case, “more than 90 calendar days have elapsed and business conditions require that

[Auto Club] fill the vacancy.” (Page ID # 510.) On June 26, 2012, Ruby sent Deister another

letter requesting “return of company-owned equipment.” (Page ID # 174.) The letter concluded,

“[p]lease contact me . . . by no later than noon on Friday, June 29, 2012. If you fail to contact

me by this deadline, you will leave me no choice but to pursue recovery through other legal

channels.” Id.

       On July 19, 2012, Deister’s psychiatrist met with Deister and determined that he would

be able to return to work on August 1, 2012. Deister called JoAnn Hines (“Hines”), an Auto

Club Human Resources employee, on July 24, 2012, and informed her that he wanted to meet

with her before his leave ended to discuss his options. Hines told him that she could not meet



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Case No. 1620 Deister v. Auto Club Insurance Ass’n


until August 1, 2012. After this conversation, on July 31, 2012, Hines left Deister a voicemail

advising that she could respond to questions about his leave, but that if he had questions

regarding “the option for employment with a 90-day letter” then he would need to meet with

Brockington. (Page ID # 504.)

       Deister left Brockington a voicemail on July 31, 2012. She returned his call on August 1,

2012. While the contents of that conversation are disputed, there is no dispute that Brockington

told Deister that he needed to review his “90 Day Letter,” and that he would have to go back to

his former position. (Page ID # 697–98.) Nor is there any dispute that Deister said he would not

return to his former position under the same manager, Ruby. (Page ID # 697.) Deister states that

he also requested Brockington to review his medical records and suggested the possibility of

working under a different manager. (Page ID # 697.) Following their phone conversation,

Brockington sent Deister a letter dated, August 6, 2012, stating, in relevant part, “[b]ecause you

have chosen not to return to your former position, your employment will be terminated effective

August 7, 2012.” (Page ID # 173.)

       On October 10, 2012, Deister filed a charge of disability discrimination against Auto

Club with the Equal Employment Opportunity Commission (“EEOC”). The EEOC subsequently

issued Deister a right to sue letter on February 27, 2013. Deister filed this suit on September 18,

2013, and on March 5, 2015, the district court granted Auto Club’s motion for summary

judgment. Deister’s motion for reconsideration was also denied. This timely appeal followed.

                                                II.

       We review a district court’s grant of summary judgment de novo. Rd. Sprinkler Fitters

Local Union No. 669, U.A., AFL-CIO v. Dorn Sprinkler Co., 669 F.3d 790, 793 (6th Cir. 2012).

Likewise, we also review a district court’s denial of a motion for reconsideration de novo. Bank



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Case No. 1620 Deister v. Auto Club Insurance Ass’n


of Ann Arbor v. Everest Nat. Ins. Co., 563 F. App’x 473, 475 (6th Cir. 2014). When reviewing a

district court’s summary judgment decision, we draw all reasonable inferences in the light most

favorable to the party opposing the motion. Hanover Ins. Co. v. Am. Eng’g Co., 33 F.3d 727,

730 (6th Cir. 1994). “Summary judgment is appropriate when there is no genuine issue of

material fact for trial and the moving party is entitled to judgment as a matter of law.” Smith v.

Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir. 1999) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322–23 (1986)). “A dispute is ‘genuine’ only if based on evidence upon which a

reasonable jury could return a verdict in favor of the non-moving party,” and a “factual dispute

concerns a ‘material’ fact only if its resolution might affect the outcome of the suit under the

governing substantive law.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th

Cir. 2006).

                                               III.

       On appeal, Deister argues that the district erred in (1) granting summary judgment with

respect to his disability discrimination and failure to accommodate claims, and (2) in deciding

that he was foreclosed from litigating his disability retaliation claim because he did not exhaust

his administrative remedies. For the reasons explained below, we disagree.

                                               A.

       The ADA prohibits employers from discriminating “against a qualified individual on the

basis of disability in regard to job application procedures, the hiring, advancement, or discharge

or employees, employee compensation, job training, and other terms, conditions and privileges

of employment.” 42 U.S.C. § 12112(a). In cases like the one before us, where no direct

evidence of discrimination is in the record, we utilize the McDonnell–Douglass burden-shifting

framework to determine whether a viable discrimination claim exists. Anderson v. City of Blue



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Case No. 1620 Deister v. Auto Club Insurance Ass’n


Ash, 798 F.3d 338, 356 (6th Cir. 2015). Under that framework, a plaintiff must first establish a

prima facie case of discrimination, showing that: (1) he is disabled; (2) he was otherwise

qualified for the position, with or without reasonable accommodation; (3) he suffered an adverse

action; (4) the employer knew or had reason to know of his disability; and (5) he was replaced or

the job remained open. Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729, 735 (6th Cir.

2015). If a prima facie case is established, the burden shifts to the defendant to provide a

legitimate, nondiscriminatory reason for taking the adverse action. Id. Once the defendant

overcomes that hurdle, the plaintiff must present evidence that would allow a jury to find that the

defendant’s explanation is a pretext for discrimination. Id. In doing so, the plaintiff must show

that his disability was a but-for cause of the adverse decision. Lewis v. Humboldt Acquisition

Corp., 681 F.3d 312, 321 (6th Cir. 2012) (en banc).


         The district court found that Deister satisfied his burden of establishing a prima facie

case, and also determined that Auto Club proffered a nondiscriminatory reason for terminating

Deister—he “refus[ed] to return to his position after the expiration of his short term disability

leave.” (Page ID # 1283.) 1            In making that determination the district court relied on the

following undisputed facts: (1) Deister provided no evidence to extend his leave;


1
  In accepting that Deister made out a prima facie case, the district court held he had adequately established that he
had a disability. Yet, at the time of the complained-of adverse employment action, the August 7, 2012 termination,
Deister had been cleared for return to work without restriction by his treating physician, T.L. Ittiara, M.D. There is
no evidence Deister was then still suffering from the acute stress reaction he experienced on March 8, 2012. The
district court nevertheless construed the record most generously in Deister’s favor and held that a reasonable finder
of fact could find that Deister had an “episodic disability.” In support, the district court cited two sources: (1) Dr.
Ittiara’s May 8, 2012 intake diagnosis of “Major Depression–recurrent, Anxiety Disorder;” and (2) Beair v. Summit
Polymers, 2013 WL 4099196 at *3 (E.D. Ky., Aug. 13, 2013) (finding diagnosis of major depression disorder and
PTSD sufficient to meet low threshold of qualifying disability).
         Suffice it to say we are not persuaded. A disability is hardly made out by the mere fact that Deister’s
presenting condition was diagnosed in May 2012 as “major depression–recurrent,” without evidence that earlier
manifestations of the condition had been disabling, and without evidence that Deister’s condition resulted in
substantial limitation of his major life activities in August, when he was terminated. Yet, our reticence regarding the
adequacy of Deister’s prima facie case showing is of little consequence as we ultimately agree that summary
judgment was properly awarded to Auto Club on other grounds.

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Case No. 1620 Deister v. Auto Club Insurance Ass’n


(2) Brockington told Deister that upon the expiration of his short term disability leave he must

return to his former position, as it had not been filled; and (3) Deister told Brockington that he

would not return to his previous position under his former manager. (Page ID # 20.) However,

the district court decided that Deister failed to meet his burden of showing that Auto Club’s

proffered reason for terminating him was a pretext. We find no error with the district court’s

reasoning or ultimate conclusion that Deister did not meet his burden of proving that Auto

Club’s proffered reason for terminating him was a pretext for discrimination.


       On appeal, Deister takes issue with the district court’s decision that he did not meet his

burden of establishing that Auto Club’s decision to discharge him was, in fact, a pretext.

Deister’s arguments, however, are meritless and do nothing to demonstrate that Auto Club’s

discharge decision was not legitimate. A plaintiff can establish pretext by showing, (1) that the

defendant’s proffered reason had no basis in fact, (2) that the proffered reason did not actually

motivate the adverse employment decision, or (3) that the proffered reason was insufficient to

motivate the adverse employment decision. Chattman v. Toho Tenax Am., Inc., 686 F.3d 339,

349 (6th Cir. 2012). The first category implicates evidence that the proffered basis never

occurred; the second category requires a plaintiff to admit the factual basis underlying the

proffered reason and also admit that the reason could motivate the adverse action, but prove in

reality it did not; the third category is a direct attack on the credibility on the employer’s

proffered motivation and may consist of evidence that employees outside the protected class

were not disciplined despite the fact that they engaged in substantially identical conduct as the

plaintiff. Id. (citing Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.

1994) (overruled on other grounds)). Deister’s basis for arguing that Auto Club’s discharge

decision was a pretext must fit into one of the above-defined categories.


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Case No. 1620 Deister v. Auto Club Insurance Ass’n


       While Deister’s appellate brief sets forth arguments that are difficult to discern, the

comprehensible argument it does provide fails to sufficiently demonstrate that Auto Club’s

reason for discharging him was a pretext. It appears that he contends that Brockington and Hines

were coconspirators in a ploy to discharge him by intentionally delaying his meeting until

August 1, 2012, the same day his leave expired. His argument fails for three reasons. First, it

does not fit into one of the previously articulated alternatives to prove a pretext, because, as

stated above, Deister told Brockington that he would not return to work at Auto Club if it meant

that he had to work in his previous position. See id. Second, proof of the conspiracy is not in the

record, thus we cannot assume that one existed. See Arendale v. City of Memphis, 519 F.3d 587,

601 (6th Cir. 2008) (“conclusory statements are not sufficient to survive any motion for

summary judgment”). Third, assuming, arguendo, that Brockington and Hines conspired to

move his meeting to the same day his leave expired, that fact does nothing to prove pretext

because, as stated above, Deister made it clear in no uncertain terms that he would not return to

work if it entailed working in his previous position. His insistence provided Auto Club with a

nondiscriminatory reason to discharge him. Accordingly, we agree with the district court’s

decision that Deister did not establish that Auto Club’s proffered reason for terminating his

employment was a pretext.

                                                 B.

       Under the ADA, employers must make “reasonable accommodations to the known

physical or mental limitations of an otherwise qualified individual with a disability who is an . . .

employee, unless [the employer] can demonstrate that the accommodation would impose an

undue hardship on the operation of the [employer’s] business.” 42 U.S.C. § 12112(b)(5)(A). In

order to establish a prima facie failure to accommodate claim under the ADA, Deister was



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Case No. 1620 Deister v. Auto Club Insurance Ass’n


required to show that: (1) he was disabled within the meaning of the Act; (2) he was otherwise

qualified for the position, with or without reasonable accommodation; (3) Auto Club knew or

had reason to know about his disability; (4) he requested an accommodation; and (5) Auto Club

failed to provide the necessary accommodation. Johnson v. Cleveland City Sch. Dist., 443 F.

App’x 974, 982–83 (6th Cir. 2011).

       Like Deister’s disability discrimination claim, we also analyze failure to accommodate

claims based on circumstantial evidence using the McDonnell–Douglass burden-shifting

framework. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007). Under that

framework, first, Deister bears the initial burden of establishing that he is disabled. Second,

Deister must prove that he was “otherwise qualified” for the position despite his disability.

Third, the burden is transferred to Auto Club to show that the challenged job criterion is

essential, or that the proposed accommodation will impose an undue hardship upon Auto Club.

Id.

       The district court determined that Deister failed to satisfy his burden to make a prima

facie case because there was no evidence to prove that he requested an accommodation. Deister

contends that he has provided evidence that he did make a satisfactory request for an

accommodation. Specifically, Deister points to his sworn declaration, in which he alleged that,

during a telephone conversation with Brockington on August 1, 2012, he requested an

accommodation for his disability. In his declaration, Deister alleges that he told Brockington,

“[y]ou need to review my medical records,” and that he “wanted a meeting to discuss [his]

options regarding [his] condition and employment.” (Page ID. # 430.) He also alleged that after

Brockington did not respond he “began offering suggestions hoping she would respond in some




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Case No. 1620 Deister v. Auto Club Insurance Ass’n


way” and that he also requested “another adjusting position with a different manager . . . possibly

even a different position. . .” (Page ID # 431.)

       We disagree, and hold that Deister’s sworn averments in his declaration fall short of

satisfying his burden to show he requested an accommodation under the ADA. As we have

previously observed “[o]ur case law establishes no bright-line test for when the form of an

employee’s request is sufficiently clear to constitute a request for an accommodation.” Judge v.

Landscape Forms, Inc., 592 F. App’x 403, 407 (6th Cir. 2014). Although a plaintiff need not use

the word “accommodate” or “disability,” at a minimum he must “make it clear from the context

that [the request] is being made in order to conform with existing medical restrictions.” Leeds v.

Potter, 249 F. App’x 442, 449 (6th Cir. 2007) (citing Smith v. Henderson, 376 F.3d 529, 535 (6th

Cir.2004) (holding that a plaintiff stating that a job was “kicking his ass” is not sufficient to

request an accommodation)); see also Stanciel v. Donahoe, 570 F. App’x 578, 583 (6th Cir.

2014) (reasoning that requesting a “revised work schedule” without letting the employer know

he needed the accommodation because of his disability provides the employer with no reason to

know that the employee is requesting an accommodation for his disability).

       Deister’s blanket requests for Brockington to review his medical records, for a meeting to

discuss employment conditions, or to be placed in a new position all are insufficient to amount to

an accommodation request under the ADA.                     As explained above, in requesting an

accommodation, we require plaintiffs not only to request to be accommodated, but to also

provide their employers with a sufficient basis to understand that the request is being made

because of their disability. See Stanciel, 570 F. App’x at 583. Deister’s request for Brockington

to review his medical records and his request for a meeting to discuss his employment conditions

are not requests to be accommodated. Moreover, with respect to his request to be placed in a



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Case No. 1620 Deister v. Auto Club Insurance Ass’n


new position, Deister failed to let Brockington know that he was requesting a new position

because of his disability. 2 Accordingly, we agree with the district court and hold that insufficient

evidence exists in the record to show that Deister requested an accommodation under the ADA.

                                                        C.

         “As a general rule, a Title VII plaintiff cannot bring claims in a lawsuit that were not

included in his EEOC charge.” Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir.

2010) (finding that a plaintiff’s EEOC form fails to bring a retaliation charge when the box

entitled “retaliation” is not checked and the narrative does not allege facts from which one could

conclude that he or she intends to bring a retaliation claim;) see also Dixon v. Ashcroft, 392 F.3d

212, 217 (6th Cir. 2004) (reasoning that the determinative inquiry is whether a plaintiff alleged

specific facts in his EEOC complaint to put the EEOC on notice of his retaliation claim). “This

rule serves the dual purpose of giving the employer information concerning the conduct about

which the employee complains, as well as affording the EEOC and the employer an opportunity

to settle the dispute through conference, conciliation, and persuasion.” Younis, 610 F.3d at 361.

        In this case, Deister failed to check the box in his EEOC form entitled “retaliation.” Nor

does the narrative section include facts that would suggest that he intended to bring an ADA

retaliation claim. (See Page ID # 176.) Therefore, we agree with the district court’s decision that

Deister failed to exhaust his administrative remedies as to his retaliation claim because his EEOC

form did not include a retaliation charge.

        In his appellate brief, Deister appears to contend that the district court erred because

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2519 (2013), overruled our court’s


2
 Even if the record were generously construed as evidencing Deister’s communication of a request to be assigned to
a manager other than Ruby, the result would be the same. As the district court recognized, citing Burdett-Foster v.
Blue Cross & Blue Shield of Michigan, 574 F. App’x 672, 680 (6th Cir. 2014), an employer is not obliged to honor,
as a “reasonable accommodation,” an employee’s request for assignment to a different supervisor.

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Case No. 1620 Deister v. Auto Club Insurance Ass’n


precedent and announced a new rule in which a plaintiff preserves a retaliation claim by simply

checking the box entitled “disability” on the EEOC form. However, not only does Nassar fail to

promulgate such a rule, it does not even discuss the exhaustion of administrative remedies issue

presented by this case. Therefore, we need not address it further.

                                               IV.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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