             NOT RECOMMENDED FOR FULL-TEXT PUBLICATON
                        File Name: 15a0641n.06

                                                  No. 14-1824

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

ROBERT HURTT,                                                  )
                                                                                              FILED
                                                                                      Sep 14, 2015
                                                               )
        Plaintiff-Appellant,                                   )                  DEBORAH S. HUNT, Clerk
                                                               )
                          v.                                   )        ON APPEAL FROM THE
                                                               )        UNITED STATES DISTRICT
INTERNATIONAL SERVICES, INC.,                                  )        COURT FOR THE EASTERN
                                                               )        DISTRICT OF MICHIGAN
        Defendant-Appellee.                                    )
                                                               )


BEFORE:          KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.*

        DAMON J. KEITH, Circuit Judge.                       Plaintiff-Appellant, Robert Hurtt (“Hurtt”),

appeals the district court’s order granting summary judgment to Defendant-Appellee,

International Services, Inc. (“ISI”) on Hurtt’s claims of: (1) disability discrimination and failure

to accommodate under the Americans with Disabilities Act (“ADA”),1 42 U.S.C. § 12112(a);

(2) Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”), Mich. Comp. Laws

§ 37.1101 et seq.; (3) retaliation under the ADA, 42 U.S.C. § 12203; (4) retaliation under the

PWDCRA, Mich. Comp. Laws § 37.1602(a); (5) Family and Medical Leave Act (“FMLA”)

interference, 29 U.S.C. § 2615(a)(1); and (5) FMLA retaliation, 29 U.S.C. § 2615(a)(2). The

district court found that Hurtt failed to establish a prima facie case of: (1) discrimination under


        *
           The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting
by designation.
         1
           The district court did not address Hurtt’s failure to accommodate claim, which is analyzed separately from
the disability discrimination claim. Thus, this claim is not properly before us for review. See 42 U.S.C. §
12112(b)(5)(A); Burdett-Foster v. Blue Cross Blue Shield of Mich., 574 F. App’x 672, 680 (6th Cir. 2014) (stating
the prima facie case for a failure to accommodate claim).
Case No. 14-1824, Hurtt v. International Services, Inc.


the ADA and PWDCRA; (2) retaliation;2 and (3) FMLA interference. Particularly, the district

court concluded that Hurtt could not show that he suffered an adverse employment action for any

claim.

         Because the district court erred in articulating the correct standards for Hurtt’s disability

discrimination and FMLA interference claims, and because Hurtt has shown the existence of

genuine issues of material fact, as required to withstand summary judgment, we REVERSE and

REMAND all claims for further proceedings consistent with this opinion.

                                               I.   BACKGROUND

         Robert Hurtt was first employed by ISI (previously known as “IPA”) as a business

analyst from 2007-2010. (R. 46-10, Hurtt Dep. 18-19, 26-27, Pg ID 1079, 1081). ISI provides

management and tax consulting services to small and medium-sized businesses. Hurtt’s position

required him to travel to various business locations to convince the business to purchase a

“survey” from a senior business consultant. Essentially, Hurtt’s job was that of a traveling

salesman and he worked on a commission pay scale. (Id. 21, Pg ID 1079). He left ISI in 2010

due in part to the quality of his travel assignments because the opportunity to make commission

from his assignments was extremely low. (Id. 41-42, Pg ID 1084-85). In 2011, Donna Brewer,

ISI’s Survey Services Director, recruited Hurtt to return to ISI as a senior business analyst.

(R.46-3, Brewer Dep. 6, Pg ID 863). Shortly thereafter, Hurtt met with Brewer, as well as John

Burgess, ISI’s owner, and Tyler Burgess, John’s son, to discuss Hurtt returning to ISI. Hurtt

agreed to return to ISI after Brewer agreed to give him: (1) a twelve percent commission; (2) a

$70,000 per year “draw”; (3) pre-paid work-related flights, hotels, and car rentals (as opposed to

reimbursement); and (4) $40/day per diem for food during his travels. (Brewer Dep. 11, Pg ID

         2
           The district court held that Hurtt failed to establish a prima facie case of retaliation under the ADA and
PWDCRA. The district court did not address Hurtt’s claims of retaliation under the FMLA, nor did the district court
separately analyze Hurtt’s failure to accommodate claim under the ADA.

                                                         2
Case No. 14-1824, Hurtt v. International Services, Inc.


864; 15, Pg ID 865); (R. 46-15, 9/5/12 Conversation, Pg ID 1148); (Hurtt Dep. 210-11, Pg ID

1127). According to Hurtt, Brewer also agreed to give Hurtt a four-day work week, with two

assignments per week. (Hurtt Dep., 78, Pg ID 1094). The parties agreed to these terms and

Hurtt returned to ISI as a senior business analyst.

        There is some dispute as to the classification of the $70,000 “draw.” Brewer testified in

her deposition that “draw” meant “against money earned,” (Brewer Dep. 12, Pg ID 864), and ISI

asserts that Hurtt’s draw was “recoverable” or “a draw against Hurtt’s earned commissions,

which could be reviewed and changed by ISI.” Appellee’s Br. 15. According to John Burgess,

the recoverable draw meant ISI would recoup from Hurtt’s commission, the bi-weekly draw

amount paid to Hurtt every two weeks. (R. 46-4, J. Burgess Dep. 26, Pg ID 897). Thus, if

Hurtt’s commissions did not exceed the draw amount for a particular two week period, Hurtt

would be indebted to ISI for the difference. (Id.).3 Hurtt, on the other hand, testified that the

draw was “guaranteed income” or “forgivable.” (Hurtt Dep. 210-11, Pg ID 1127). He contends

this meant that if he made commission income above $70,000, he would keep the difference, but

if he made less than $70,000, he would not have to repay the $70,000. (Id.). On September 23,

2011, Brewer sent a memo via email to ISI’s accounting department that stated the following:

        Effective 9/26/2011, Robert Hurtt will be employed as a Senior Business Analyst
        for GPS. Mr. Hurtt is to be paid a 12% commission. His hotel and rental care are
        to be billed and paid for by us. He will receive a $40 a day perdiem [sic] as well
        as a $70,000 a year draw.




        3
           John Burgess provided the following explanation of his meaning of a “recoverable draw”:
“It means—let’s assume that I’m paying you $2,000 a week, we’ll just use that number as a recoverable draw, we
have done this sometimes in the company, which we did here. You receive that $4,000 every two weeks, you
receive that $4,000 gross every two weeks, and let’s assume the first two weeks you don’t make it and the next two
weeks you don’t make it, but let’s say you made $1200 in one week and 2000 in the next so, therefore, you would be
behind 2800 and you would behind 2000, you would be behind 4,800. The next check is $11,000, we take back the
4800 against the 11,000, to bring us back to a point where we’re even on that recoverable draw.” (J. Burgess Dep.,
26, Pg ID 897).

                                                        3
Case No. 14-1824, Hurtt v. International Services, Inc.


(R. 43-5, Ex. E, Pg ID 626). Neither the memo nor any or documentation provided by the parties

specifies the terms of the draw.

       Hurtt returned to ISI in September of 2011, and stated that he soon began traveling

extensively with little time for sleep. (Hurtt Dep. 89-90, Pg ID 1096-97). He was prescribed

sleeping pills, but stated that they gave him migraines if he did not get the adequate amount of

sleep. Hurtt testified that he would often get only three or four hours of sleep or time in a hotel.

(Id., 91, Pg ID 1097). He stated that, “it got to the point where I would be traveling 1:00, 2:00 in

the morning . . . and then trying to open and function the next day.” (Id. 89, Pg ID 1096). On

March 5, 2012, Hurtt sent Brewer a note from Dr. Pamela Littles documenting hypertension,

chronic cough, upper respiratory infection, dizziness, sinusitis, and mental fatigue. (R. 47-3, Dr.

Littles Doc. Pg ID 1161). Dr. Littles recommended “sleep hygiene” and time off from traveling.

(Id.). Brewer interpreted the doctor’s note to mean that Hurtt had a cold, (Brewer Dep. 63, Pg ID

877), and subsequently told Hurtt to “get your dick out . . . and toughen up.” (Hurtt Dep. 99, Pg

ID 1099).

       Hurtt claims that after he requested more time for sleep and a four-day work week, ISI

threatened to take away his draw. (Id. 104; 107, Pg ID 1100; 1101). He testified that he

subsequently attempted suicide. (Id. 83-85, Pg ID 1095). With medication and therapy, Hurtt

continued to work the following months. According to Hurtt, he communicated with Brewer

“[o]ver and over again” about his need for down-time between assignments. (Hurtt Dep. 212, Pg

ID 1127). He testified that he asked Brewer on an “almost . . . weekly basis” about “going back

to the original agreement of the four-day work week” so that he had “adequate [] time to recoup”

and sleep, to no avail. (Id., 88-89, 90; Pg ID 1096-97).




                                                 4
Case No. 14-1824, Hurtt v. International Services, Inc.


        On September 1, 2012, Hurtt saw a licensed therapist, Dr. Melissa Sharnowski. Dr.

Sharnowski faxed ISI a letter dated September 1, 2012, stating that Hurtt suffered from acute

anxiety and depression. (R. 43-2, Ex. B, Pg ID 569). Dr. Sharnowski placed Hurtt on leave

through September 4, 2012, authorizing his return to work on September 5. (Id.). The letter

further stated that Hurtt might require additional time off over the next nine to twelve months,

and advised him to seek FMLA leave. (Id.). On September 4, 2012, Hurtt submitted an FMLA

request for leave when his acute anxiety or depression flared up. ISI processed Hurtt’s FMLA

request. The following day, however, ISI terminated Hurtt’s $70,000 draw, and made the

termination retroactive to September 1. (Hurtt Dep. 112-13, Pg ID 1102); (Brewer Dep., 87-88,

Pg ID 766). Hurtt was placed on a commission-only pay scale, and his pre-paid travel expenses

were terminated. (Brewer Dep. 88, Pg ID 883). Hurtt’s placement on commission resulted in

him becoming immediately indebted to ISI for over $22,751.93 in “advanced, unearned

commissions.” (Appellant Br. 8; see also Hurtt Dep. 152, Pg ID 1112; Brewer Dep. 87-88, Pg

ID 883). According to Hurtt, this was the first time Brewer informed him that he owed ISI

money. (Hurtt Dep. 152, Pg ID 1112). Later that day, Hurtt sent Brewer an email informing her

that “[t]he new compensation and travel arrangements that [she] want[ed] [him] to work under

ma[de] it very difficult for [him] to afford.” (R.46-16, Ex. 17, Pg ID 1151). He requested that

he “continue to do the same job under the same compensation agreement” in place before he left

for FMLA. (Id.). Hurtt did not report to work on September 5, 2012. He testified that the new

compensation and travel arrangements make it impossible for him to return.4 (Hurtt Dep., 114,

Pg ID 1103). He continued to communicate with Brewer about his need for the $70,000 draw,

and spoke with Brewer and others in regarding to a date for his return. (Id. 115, Pg ID 1103).


        4
         Hurtt testified that if he were to resume working, he would have gotten an assignment on the evening of
September 5th for travel on September 6th.

                                                       5
Case No. 14-1824, Hurtt v. International Services, Inc.


       On September 18, 2012, Hurtt’s attorney sent ISI a letter notifying it that Hurtt would not

be returning to work. Hurtt subsequently filed suit against ISI alleging disability discrimination

and retaliation under the ADA and the PWDCRA, as well as FMLA interference and retaliation.

On January 31, 2014, ISI filed its motion of summary judgment as to Hurtt’s claims. ISI argued

that no genuine issues of material fact existed because Hurtt voluntarily quit, and that it was not

required to accommodate a request for change in work travel schedules. (R. 43, Def.’s Mot. for

Summ. J., Pg ID 530). On May 30, 2014, the district court granted ISI’s motion, finding that

Hurtt failed to show that he suffered an adverse employment action or engaged in protected

activity. Hurtt filed this timely appeal.

                                            II.   DISCUSSION

       A. Standard of Review

       We review a district court’s grant of a motion for summary judgment de novo. Baggs v.

Eagle–Picher Indus., Inc., 957 F.2d 268, 271 (6th Cir. 1992).              Summary judgment “is

appropriate only where “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.’” Whitfield v. Tennessee, 639 F.3d 253, 258 (6th Cir.

2011) (quoting Fed. R. Civ. P. 56(c)). Additionally, summary judgment is appropriate “‘against

a party who fails to make a showing sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.’” Id. (citation

omitted). “[A]t the summary judgment stage[,] the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In evaluating this appeal,

“[t]his court does not weigh the evidence, evaluate the credibility of witnesses, or substitute its



                                                  6
Case No. 14-1824, Hurtt v. International Services, Inc.


judgment for that of the jury.” Arban v. W. Publ’g Corp., 345 F.3d 390, 400 (6th Cir. 2003).

Rather, “[t]he court must draw all reasonable inferences in favor of the nonmoving party.”

Shreve v. Franklin Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014).

        B. Disability Discrimination under the ADA and PWDCRA5

        The ADA prohibits discrimination against a qualified individual “on the basis of

disability” in employment decisions.            42 U.S.C. § 12112(a).           Without direct evidence of

disability discrimination, claims brought under the ADA and PWDCRA are evaluated under the

McDonnell Douglas burden-shifting approach.6 Hedrick v. W. Reserve Care Sys., 355 F.3d 444,

453 (6th Cir. 2004); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under

the McDonnell Douglas approach, the plaintiff carries the initial burden of establishing a prima

facie case of discrimination. Whitfield, 639 F.3d at 259. To establish a prima facie case under

the ADA, the plaintiff must show that “1) he or she is disabled; 2) otherwise qualified for the

position, with or without reasonable accommodation; 3) suffered an adverse employment

decision; 4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the

position remained open while the employer sought other applicants or the disabled individual

was replaced.” Id. (internal quotation marks omitted). An adverse employment action is “a

materially adverse change in the terms of [the employee’s] employment.” Kocsis v. Multi-Care

Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996). Once the plaintiff establishes this prima facie

case, the burden then shifts to the defendant to provide a “legitimate, nondiscriminatory reason”

for the adverse action. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1184-85 (6th Cir. 1996),


        5
            The district court analyzed Hurtt’s claims for disability discrimination claims under the ADA and
PWDCRA together. Because the ADA and PWDCRA substantially mirror each other, “resolution of [the]
plaintiff’s ADA claim will generally, though not always, resolve the plaintiff’s PWDCRA claim.” Cotter v. Ajilon
Servs., Inc., 287 F.3d 593, 597 (6th Cir. 2002), abrogated on other grounds by Lewis v. Humboldt Acquisition
Corp., 681 F.3d 312 (6th Cir. 2012). Neither party disputes that resolution of Hurtt’s ADA claim would resolve his
PWDCRA claim. Accordingly, we analyze Hurtt’s ADA and PWDCRA claims together.
          6
            Hurtt does not dispute the district court’s application of the indirect evidence prima facie case.

                                                        7
Case No. 14-1824, Hurtt v. International Services, Inc.


abrogated on other grounds by Lewis 681 F.3d 312. “If the employer offers a legitimate reason

for its action that is unrelated to the employee’s disability, the plaintiff will bear the burden of

establishing that the proffered reason is a pretext for unlawful discrimination.” Id. at 1185-86.

       As an initial matter, we address the use of a constructive discharge claim as a means to

show an adverse employment action. In obvious contradiction to Sixth Circuit precedent, the

district court improperly held that “a plaintiff cannot use a claim of constructive discharge to

establish an adverse employment action.” (R. 50, Order, Pg ID 1225). As support for this

proposition, the district court cited Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 480-81

(6th Cir. 2012). But Regan does not stand for this broad assertion. In Regan, the plaintiff

alleged that her resignation following her employer’s denial of her work schedule shift request

constituted a constructive discharge. Id. at 481. The plaintiff asserted that the constructive

discharge constituted an adverse employment action, which would establish a prima facie case

for gender discrimination. Id. This Court found that the plaintiff had not “put forth evidence

showing that [her employer] ‘deliberately created intolerable working conditions, or that there

was any intention that the [new work schedule] was designed to force [plaintiff] to quit,” as

required to show a constructive discharge. Id. at 482. As such, this Court found that plaintiff

could not “use a claim of constructive discharge to establish an adverse employment action for

purposes of demonstrating [her] gender discrimination.” Id. (emphasis added).

       The outcome in Regan was based the facts of that case. It did not hold, as a matter of

law, that the use of a constructive discharge to establish an adverse employment action was

impermissible or contrary to Sixth Circuit precedent. Indeed, this Court has repeatedly held to

the contrary. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1109-10 (6th Cir.

2008) (reversing summary judgment on plaintiff’s ADA constructive discharge claim); Saroli v.



                                                 8
Case No. 14-1824, Hurtt v. International Services, Inc.


Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005) (recognizing

plaintiff’s claim of a constructive discharge as an adverse employment action); Smith v.

Henderson, 376 F.3d 529, 533 (6th Cir. 2004) (analyzing whether plaintiff suffered an adverse

employment action via her claim of a constructive discharge); Logan v. Denny’s, Inc., 259 F.3d

558, 568 (6th Cir. 2001) (“Plaintiff may establish an adverse employment action by

demonstrating that she was constructively discharged.”).                       Thus, although already well

established, we hold once more today that a plaintiff may use a constructive discharge claim to

show that he or she has suffered an adverse employment action.

         In reiterating that a plaintiff may use a constructive discharge to satisfy the adverse

employment action requirement, we must now determine whether Hurtt made a showing

sufficient to establish the existence of an adverse employment action (i.e., a constructive

discharge), to survive a motion for summary judgment.7                       To demonstrate a constructive

discharge, the plaintiff must show that (1) the employer deliberately created intolerable working

conditions, as perceived by a reasonable person; (2) the employer did so with the intention of

forcing the employee to quit; and (3) the employee actually quit. Savage v. Gee, 665 F.3d 732,

739 (6th Cir. 2012). There is no dispute that Hurtt quit, satisfying the third prong of the prima

facie case. The issue rests with the first two prongs.

         In determining whether the first prong is met, we have held that “[w]hether a reasonable

person would have [felt] compelled to resign depends on the facts of each case[,]” but we

consider several factors, including but not limited to, “reduction in salary” and “badgering,

harassment, or humiliation by the employer calculated to encourage the employee’s resignation.”

Id. (quoting Logan, 259 F.3d at 569). Drawing all inferences in favor of Hurtt, the record shows

         7
           Although ISI argued below that Hurtt could not show that he was disabled or that ISI knew or had reason
to know of Hurt’s disability, the district court’s opinion does not address these two arguments. Therefore, we do not
consider these two arguments on appeal.

                                                         9
Case No. 14-1824, Hurtt v. International Services, Inc.


that: (1) Hurtt’s $70,000 draw was terminated; (2) he was placed on a commission-only pay

scale, made retroactive to September 1, resulting in an approximately $22,000 deficit owed to

ISI; and (3) Hurtt’s prepaid expenses were terminated. Considering these facts, we find that a

reasonable person in Hurtt’s situation would have found these working conditions intolerable

enough to compel resignation.

        Further, in analyzing the second prong, we have held that “a complete failure to

accommodate, in the face of repeated requests, might suffice as evidence to show the

deliberateness necessary for constructive discharge.”      Talley, 542 F.3d at 1109 (internal

quotation marks and citation omitted).     Hurtt testified in his deposition that he repeatedly

requested an accommodation of eight hours of sleep per night during his travel due to his

documented medical needs. (Hurtt Dep., 88-89, 143, 147, 211-12, Pg ID 1096-97, 1110-1111,

1127). And the record shows that ISI failed to accommodate, or even discuss with Hurtt any

resolution to his request. Additionally, Hurtt claims that he made it clear to Brewer that he

would not be able to survive on the commission-only pay. Hurtt testified in his deposition that

he informed Brewer that without his guaranteed draw he would not be able to afford working at

ISI.   Indeed, Hurtt argues that he was only able to return to ISI because he received the

guaranteed draw. Assuming that Hurtt was denied a reasonable accommodation and that his

draw was wrongfully terminated, a jury could reasonably infer that ISI knew that Hurtt’s

working conditions would become so intolerable as force Hurtt to quit.

        The district court’s analysis of Hurtt’s disability discrimination claims was cursory at

best. It determined that Hurtt could not show that he suffered an adverse employment action,

and presumably a constructive discharge, because (1) he did not report to work on September 5,

2012 (the date his psychotherapist released him to return to work); and (2) ISI did not interfere



                                               10
Case No. 14-1824, Hurtt v. International Services, Inc.


with Hurtt’s leave on September 4, 2012. It is not clear from the district court’s order why

Hurtt’s failure to report to work on September 5, and ISI’s lack of interference with Hurtt’s

leave, would belie his claim of a constructive discharge. It appears the district court attempted to

rely on these two facts to conclude that Hurtt had not suffered an adverse employment action, but

rather, voluntarily quit when he failed to show up for work on September 5. But these facts

alone are not fatal to Hurtt’s claim. Indeed, evidence in the record shows that Hurtt was still

employed by ISI after September 5—after his draw was revoked. The record also shows that ISI

processed Hurtt’s FMLA leave request through September 10, and this paperwork was submitted

to Dr. Sharnowski on September 10. (R. 47-10, Pl.’s FMLA Packet, Ex. 12). And, a September

11 email to Mr. Hurtt from an employee in the Employee Benefits department inquired as to

Hurtt’s intentions of returning to his schedule. Moreover, Brewer testified in her deposition that

she had numerous conversations with Hurtt after September 5, in an effort to figure out a date for

him to return to ISI. (R. 43-15, Brewer Dep. 95, Pg ID 768). Finally, on September 18, Hurtt’s

attorney sent ISI a letter notifying ISI that Hurtt would not be returning to work. (R. 43-13, Sept.

18 Roumel Letter, Pg ID 730). Jon Andes, ISI’s Director of Human Resources, testified that he

considered September 18 to be Hurtt’s resignation date and coded Hurtt’s last employment date

as such. (R. 46-2, Andes Dep. 75-76, Pg ID 854). Accordingly, the conclusion that Hurtt

voluntarily quit on September 5 is hardly undisputed.          Quite the contrary, the evidence is

sufficient to raise a genuine issue of material fact as to Hurtt’s disability discrimination claim.

       Furthermore, there is a genuine issue as to the classification of Hurtt’s draw. Hurtt

asserts that the draw was “guaranteed” and “forgivable,” meaning that if Hurtt made commission

income above $70,000, he would keep the difference, but if he made less than $70,000, he would

not have to repay the $70,000. ISI disputes that the draw was “forgivable.” Instead, ISI asserts



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Case No. 14-1824, Hurtt v. International Services, Inc.


that Hurtt’s draw was “negotiated as, and always intended to be, a draw against Hurtt’s earned

commissions, which could be reviewed and changed by ISI.”              Appellee’s Br. 15.     The

classification of Hurtt’s draw creates a genuine issue of material fact because it is germane in

assessing Hurtt’s claim of a constructive discharge—if the draw was “guaranteed” as Hurtt

contends, termination of the draw could support his claim of a constructive discharge.

       Viewed in the light most favorable to Hurtt, we find that Hurtt has identified genuine

issues of material fact relevant to whether he suffered an adverse employment action.

Accordingly, the court erred in granting summary judgment to ISI on Hurtt’s disability

discrimination claims.

       C. Retaliation Claims under the ADA and PWDCRA

       In dismissing Hurtt’s retaliation claims, the district court again relied on its conclusion

that Hurtt had not shown that he suffered an adverse employment action. (R. 50, Order, Pg ID

1227). The district court also determined that Hurtt failed to show that he engaged in any alleged

ADA protected activity. (Id. at 1227-28).

       Under the ADA’s retaliation provision, it is unlawful to “discriminate against any

individual because such individual has opposed any act or practice made unlawful by this chapter

or because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). To establish a

prima facie case of retaliation under the ADA and PWDCRA, the plaintiff must show that (1) he

engaged in activity protected by the [ADA]; (2) the defendant knew of this exercise of plaintiff’s

protected rights; (3) the defendant subsequently took an employment action adverse to plaintiff

or subjected the plaintiff to severe or pervasive retaliatory harassment; and (4) there was causal

connection between the protected activity and the adverse employment action. Steward v. New



                                               12
Case No. 14-1824, Hurtt v. International Services, Inc.


Chrysler, 415 F. App’x 632, 643-44 (6th Cir. 2011); Parker v. Daimlerchrysler Corp., No.

245066, 2004 WL 1103968, at *3 (Mich. Ct. App. May 18, 2004) (listing elements of the prima

facie case for retaliation under the PWDCRA). “If the plaintiff establishes a prima facie case of

retaliation, the burden shifts to the defendant to establish a legitimate, nondiscriminatory reason

for the adverse employment action.” Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir.

1997). The plaintiff bears the burden of proving that the defendant’s “proffered reason for the

action was merely a pretext for discrimination.” Id. (citation omitted).

       We have held that requests for accommodation are protected acts. See A.C. ex rel. J.C. v.

Shelby Cnty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013) (“Both this circuit and most others

agree that requests for accommodation are protected acts.”). Hurtt argues that he engaged in

protected activity when he requested a reasonable accommodation and when he took FMLA

leave. The requests Hurtt points to are: (1) numerous verbal requests for a four-day work week

with eight hours per night in a hotel room; (2) Dr. Littles’ March 5 documentation;

(3) submission of Dr. Sharnowski’s September 1 letter; and (4) Hurtt’s submission of FMLA

leave on September 4. ISI counters that these acts and documents did not “reasonably apprise

ISI of Hurtt’s alleged disability.” (Appellee Br. at 38). But, the pertinent inquiry here is not

whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge

of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable

accommodations. See Baker v. Windsor Republic Doors, 414 F. App’x 764, 777 n.8 (6th Cir.

2011) (“[T]he protected act is the showing of a good-faith request for reasonable

accommodations.”); see also Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3rd Cir. 1997)

(“An individual who is adjudged not to be a ‘qualified individual with a disability’ may still

pursue a retaliation claim under the ADA.”). We hold that he did.



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Case No. 14-1824, Hurtt v. International Services, Inc.


          As a whole, these acts are sufficient, good-faith requests for accommodations. Hurtt’s

verbal requests initially notified ISI that he sought sleep accommodations during his travels.

And while Dr. Littles’ document did not explicitly request an accommodation, it specifically

corroborated Hurtt’s verbal requests that he be given sufficient time to sleep during his travels to

accommodate his medical conditions. Furthermore, Dr. Sharnowski’s letter and Hurtt’s FMLA

leave request notified ISI that Hurtt sought accommodation in the form of time off from work.

Accordingly, we conclude that Hurtt has put forth sufficient evidence to show that he engaged in

protected activity as required under a claim for retaliation under the ADA.

          We also find that Hurtt adduced sufficient evidence to show that he suffered an adverse

employment action to withstand summary judgment. “To be adverse, a retaliatory action must

be enough to dissuade a reasonable person from engaging in the protected activity. . . .” Shelby

Cnty., 711 F.3d at 698 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68,

(2006)). As stated above, Hurtt testified and produced evidence that he suffered an adverse

employment action through his constructive discharge, particularly, the termination of his draw,

placement on commission-only pay resulting in an immediate indebtedness to ISI of

approximately $22,000.00, and termination of pre-paid travel expenses. Applying the summary

judgment standard, a reasonable jury could find that these actions would dissuade a reasonable

person from engaging in protected activity.

          Viewing the facts and drawing all inferences in the light most favorable to Hurtt, we

conclude that the district court erred in granting summary judgment to ISI on Hurtt’s retaliation

claims.




                                                14
Case No. 14-1824, Hurtt v. International Services, Inc.


        D. FMLA Interference and FMLA Retaliation

        Hurtt also asserted a claim for FMLA interference and FMLA retaliation against ISI. The

district court failed to address Hurtt’s FMLA retaliation claim. It dismissed Hurtt’s FMLA

interference claim by finding that Hurtt was unable to show an adverse employment action.

(R.50, Opinion, Pg ID 1229). The district court, in reaching this conclusion, erroneously applied

the standard used for a FMLA retaliation claim in analyzing Hurtt’s FMLA interference claim. 8

(Id.). Because the district court did not rule on Hurtt’s FMLA retaliation claim, it is not properly

before us for review. Accordingly, we now review only Hurtt’s FMLA interference claim.

        There are two distinct theories of recovery on FMLA claims: the “entitlement” or

“interference” theory, and the “retaliation” or “discrimination” theory. Arban, 345 F.3d at 400-

01 (6th Cir. 2003). Under the “interference” theory, it is “unlawful for any employer to interfere

with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by this

Act].” 29 U.S.C. § 2615(a)(1). To succeed on a claim for FMLA interference, the plaintiff must

show that:

        (1) he was an eligible employee; (2) the defendant was an employer as defined
        under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the
        employee gave the employer notice of his intention to take leave; and (5) the
        employer denied the employee FMLA benefits to which he was entitled.

Walton, 424 F.3d at 485 (6th Cir. 2005) (citation omitted). The last prong is the crux of Hurtt’s

claim. While “[t]he [ultimate] issue is simply whether the employer provided its employee the

        8
           Citing Stubl v. T.A. Sys., Inc., 984 F. Supp. 1075, 1090 (E.D. Mich. 1997), the district court stated:
                   A plaintiff must establish a prima facie case under the FMLA by showing:
                       1) he/she engaged in an activity protected by the FMLA;
                       2) that the exercise of his/her protected rights was known to defendant;
                       3) that defendant thereafter took an employment action adverse to the plaintiff; and
                       4) that there was a causal connection between the protected activity and the adverse
                            employment action.
(R. 50, Order, Pg ID 1229). This is the prima facie case of FMLA retaliation, not FMLA interference. Compare
Walton v. Ford Motor Co., 424 F.3d 481, 485 (6th Cir. 2005) (stating the elements for a prima facie case of FMLA
interference), with Stubl, 984 F. Supp. At 1090 (stating the elements for a prima facie case of FMLA retaliation).


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Case No. 14-1824, Hurtt v. International Services, Inc.


entitlements set forth in the FMLA,” Edgar v. JAC Products, Inc., 443 F.3d 501, 507 (6th Cir.

2006), we also have stated that “‘interfering with’ the exercise of an employee’s rights under the

FMLA includes ‘discouraging an employee from using [FMLA] leave.’” Arban, 345 F.3d at 402

(quoting 29 C.F.R. § 825.220(b)).

       Contrary to ISI’s assertions, the fact that ISI did not literally interfere with Hurtt’s FMLA

leave (i.e., by denying it, requesting he report to work, or complete work-related tasks) does not

impede Hurtt’s claim of FMLA interference. By engaging in an act that would discourage Hurtt

from using his FMLA leave, ISI could be liable under a claim for FMLA interference. Here,

Hurtt contends that ISI discouraged him from using his FMLA leave by terminating his draw.

The evidence suggests that on September 5, after Hurtt submitted his FMLA leave request, ISI:

(1) terminated his salary and placed him on a commission-only pay scale; (2) backdated the

commission pay, resulting in a deficit owed to ISI; and (3) terminated pre-payment of Hurtt’s

travel expenses. When viewed in the light most favorable to Hurtt, these facts create a triable

issue of FMLA interference.        Accordingly, the district court’s dismissal of Hurtt’s FMLA

interference claim was in error.

                                       III.   CONCLUSION

       For the above stated reasons, we REVERSE and REMAND all of Hurtt’s claims for

proceedings consistent with this opinion.




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