                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                     February 19, 2014 Session

      LATAYNIA JONES v. SHARP ELECTRONICS CORPORATION

                   Direct Appeal from the Circuit Court for Shelby County
                    No. CT-005723-10      John R. McCarroll, Jr., Judge


                  No. W2013-01817-COA-R3-CV - Filed February 28, 2014


Plaintiff filed an action alleging retaliation and interference in violation of the Tennessee
Disabilities Act. The trial court entered summary judgment in favor of Defendant Employer
on the basis that the Act does not require employers to make “reasonable
accommodations,”as were required by Plaintiff at the time she was discharged. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                    Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Travis Edgar Davison, III, Memphis, Tennessee, for the Appellant, Lataynia Jones.

Charles W. Cavagnaro, Jr., Memphis, Tennessee, for the Appellee, Sharp Electronics
Corporation.

                                               OPINION

       This appeal arises from an action for damages pursuant to the Tennessee Disability
Act (“the TDA”).1 Plaintiff Lataynia Jones (Ms. Jones) was an employee of Defendant Sharp
Electronics Corporation (“Sharp”) from 1996 until terminated on November 24, 2009. While
employed at Sharp, she was a member of the International Brotherhood of Electrical
Workers, AFL-CIO, Local 474, and was covered under a collective bargaining agreement
(“CBA”). The CBA granted covered employees maximum leave of 140 days, including 56
days of leave in addition to 12 weeks of leave mandated by the Family and Medical Leave
Act (“FMLA”). Sharp calculated FMLA leave time on a rolling 12-month basis backward

       1
           Formerly titled the Tennessee Handicapped Act. See 2008 Tenn. Pub. Acts., ch. 706, § 5.
from the date an employee received leave. Ms. Jones requested and was granted leave under
the FMLA for varied reasons on multiple occasions beginning September 2003.

       Ms. Jones took leave under the FMLA from October 17 to October 27, 2008; October
31, 2008; November 4 to November 16, 2008; November 24, 2008 to January 19, 2009 (12
days of which were counted as leave under the CBA). On September 23, 2009, Ms. Jones
requested additional leave under the FMLA. In her application for leave, Ms. Jones recited
“Depression” as the reason for leave. On September 25, 2009, Sharp approved Ms. Jones’
request for FMLA leave from September 20, 2009 through October 19, 2009, inclusive. On
October 12, 2009, Sharp advised Ms. Jones in writing that leave had been approved to end
on October 19; that leave under the FMLA would be exhausted as of October 5; that she had
used 26 days of CBA leave; and that she had a total of 30 days of remaining leave. Sharp
advised Ms. Jones that she would be expected to return to work and perform her regular job
on October 20, 2009. Sharp further advised Ms. Jones that further leave would be at its
discretion. On October 13, 2009, Ms. Jones’ physician advised Sharp that Ms. Jones was
being treated by the Memphis Psychiatric Group and that it “[would] be beneficial for Ms.
Jones to be excused from work October 13, 2009 thru November 13, 2009.” By letter dated
October 19, 2009, Sharp informed Ms. Jones that leave ending November 13 had been
approved pursuant to the CBA, that she would be expected to return to work on November
14, and that she would have five days of leave remaining. On November 16, 2009, Ms.
Jones’ physician requested additional leave on behalf of Ms. Jones through December 15,
2009. By letter dated November 6, 2009, Sharp informed Ms. Jones that leave under the
FMLA and the CBA would be exhausted as of November 18, 2009, and that she “must return
to work on November 19, 2009 or [her] employment . . . may end.” Ms. Jones did not return
to work and Sharp terminated her employment on November 24, 2009.

       On November 23, 2010, Ms. Jones filed an action in the Circuit Court for Shelby
County, alleging retaliation and interference in violation of the Family and Medical Leave
Act (“FMLA”) and the Tennessee Disability Act (“TDA”). She did not pray for
reinstatement but prayed for front pay and benefits until such time as she secured comparable
employment; back pay and compensation for fringe benefits; compensatory damages for
emotional pain and non-pecuniary loss; prejudgment interest; attorney’s fees and costs. In
December 2010, she removed the action to the United States District Court for the Western
District of Tennessee, which entered summary judgment in favor of Sharp on Ms. Jones’
FMLA claims and remanded her TDA claims to the circuit court in March 2013.

       In April 2013, Sharp moved for summary judgment based, in relevant part, on the
ground that it was entitled to judgment as a matter of law where Ms. Jones based her TDA
claim on Sharp’s failure to provide her “reasonable accommodation” in the form of a leave
of absence in excess of the 12 weeks of leave provided by the FMLA and the additional 56

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days of leave provided under the CBA. Sharp asserted that the Ms. Jones admitted and the
district court specifically found that Ms. Jones required the reasonable accommodation of
leave until December 15, 2009, and that the TDA does not include a reasonable
accommodation requirement. Sharp further asserted that Ms. Jones did not have a disability
under the TDA where she was not diagnosed with bi-polar disorder until November 2009,
where she had not been treated for the condition since December 2009, and where she
testified that she had experienced no problems since the beginning of 2010. Sharp also
asserted that Ms. Jones could not show that she was terminated solely because of her
disability and that Sharp did not know that Ms. Jones’ had bi-polar disorder when it
terminated her employment. By order entered July 10, 2013, the trial court granted Sharp’s
motion for summary judgment and this appeal ensued.

                                      Issue Presented

       Ms. Jones presents the following issue for our review, as worded by her:

       Whether the Circuit Court erred by ruling that Ms. Jones was not entitled to
       accommodation and there was no question of fact whether or not Defendant
       violated the Tennessee Disability Act.

                                    Standard of Review

         The standard of review promulgated by the supreme court in Hannan v. Alltel, 270
S.W.3d 1 (Tenn. 2008) and Martin v. Norfolk Southern Railway Co., 271 S.W.3d 76 (Tenn.
2008) is applicable to this matter where Ms. Jones filed her complaint prior to July 1, 2011.
We review a trial court’s award of summary judgment de novo with no presumption of
correctness, reviewing the evidence in the light most favorable to the nonmoving party and
drawing all reasonable inferences in that party’s favor. Norfolk S. Ry. Co., 271 S.W.3d at 84
(citations omitted). Summary judgment is appropriate only where the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits
. . . show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. at 83 (quoting Tenn. R. Civ. P. 56.04; accord
Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn. 2000)). The burden of persuasion
is on the moving party to demonstrate, by a properly supported motion, that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of law. Id.
(citing see Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W.
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.); Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn.1993)). The nonmoving party’s “burden to produce either supporting affidavits or
discovery materials is not triggered” if the party moving for summary judgment fails to make
this showing, and the motion for summary judgment must be denied. Id. (quoting McCarley,

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960 S.W.2d at 588; accord Staples, 15 S.W.3d at 88). The moving party may carry its burden
by “(1) affirmatively negating an essential element of the nonmoving party’s claim; or (2)
showing that the nonmoving party cannot prove an essential element of the claim at trial.”
Id. (citing Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)); see also McCarley,
960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n. 5). Additionally, a mere “assertion that the
nonmoving party has no evidence” will not suffice. Id. at 84 (citing Byrd, 847 S.W.2d at
215). “[E]vidence that raises doubts about the nonmoving party’s ability to prove his or her
claim is also insufficient.” Id. (citing McCarley, 960 S.W.2d at 588). Rather, “[t]he moving
party must either produce evidence or refer to evidence previously submitted by the
nonmoving party that negates an essential element of the nonmoving party’s claim or shows
that the nonmoving party cannot prove an essential element of the claim at trial.” Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)(citing Hannan, 270 S.W.3d at 5). In
order to negate an essential element, “the moving party must point to evidence that tends to
disprove an essential factual claim made by the nonmoving party.” Id. at 84 (citing see Blair
v. W. Town Mall, 130 S.W.3d 761, 768 (Tenn.2004)). The motion for summary judgment
must be denied if the moving party does not make the required showing. Id. (citing Byrd,
847 S.W.2d at 215).

       After the moving party has made a properly supported motion, the nonmoving party
must “produce evidence of specific facts establishing that genuine issues of material fact
exist.” Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215). To satisfy its
burden, the nonmoving party may: (1) point to evidence of over-looked or disregarded
material factual disputes; (2) rehabilitate evidence discredited by the moving party; (3)
produce additional evidence that establishes the existence of a genuine issue for trial; or (4)
submit an affidavit asserting the need for additional discovery pursuant to Rule 56.02 of the
Tennessee Rules of Civil Procedure. Id. (citing McCarley, 960 S.W.2d at 588; accord Byrd,
847 S.W.2d at 215 n. 6). The court must accept the nonmoving party’s evidence as true,
resolving any doubts regarding the existence of a genuine issue of material fact in that party’s
favor. Id. (citing McCarley, 960 S.W.2d at 588). “‘A disputed fact is material if it must be
decided in order to resolve the substantive claim or defense at which the motion is directed.’”
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008)(quoting Byrd, 847 S.W.2d at
215). “A disputed fact presents a genuine issue if ‘a reasonable jury could legitimately
resolve that fact in favor of one side or the other.’” Id. With this standard in mind, we turn
to whether the trial court erred in awarding summary judgment to Sharp in this case.

                                          Discussion

       The TDA provides, in pertinent part:

       There shall be no discrimination in the hiring, firing and other terms and

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       conditions of employment of the state of Tennessee or any department, agency,
       institution or political subdivision of the state, or of any private employer,
       against any applicant for employment based solely upon any physical, mental
       or visual disability of the applicant, unless such disability to some degree
       prevents the applicant from performing the duties required by the employment
       sought or impairs the performance of the work involved.

Tenn. Code. Ann. § 8-50-103(b)( 2011). To succeed on a claim under the TDA, a plaintiff
must demonstrate “(1) that the individual was qualified for the position; (2) that the
individual was disabled; and (3) that the individual suffered an adverse employment action
because of that disability.” Barnes v. Goodyear Tire and Rubber Co., 48 S.W.3d 698, 705
(Tenn. 2000). Although the TDA does not define the term “disabled,” the definition
contained in the Tennessee Human Rights Act (“THRA”) is applicable to TDA claims. Id.
at 706 (citation omitted). The THRA defines disability with respect to a person as:

       (i) A physical or mental impairment that substantially limits one (1) or more
       of such person’s major life activities;
       (ii) A record of having such an impairment; or
       (iii) Being regarded as having such an impairment[.]

Tenn. Code Ann. § 4–21–102(3)(A)(2011 & 2013 Supp.). Unlike its federal counterpart,
the Americans with Disabilities Act (“ADA”), the TDA does not impose a duty on employers
to make reasonable accommodations to accommodate a disabled employee. Bennett v.
Nissan North America, Inc., 315 S.W.3d 832, 841-42 (Tenn. Ct. App. 2009)(citation
omitted). Thus, if a person’s disability “to some degree prevents the applicant from
performing the duties required by the employment sought or impairs the performance of the
work involved[,]” a defendant employer will not be considered to have discriminated against
that person in an action under the TDA. Id. at 852 (quoting Tenn. Code Ann. § 8-5-103(b)).

       Ms. Jones acknowledges that the TDA does not contain a reasonable accommodation
requirement. She also acknowledges that she had exhausted all leave time available to her
under the FMLA and the CBA and that she was unable to return to work when her
employment was terminated in November 2009. She argues, however, that the trial court
erred by awarding summary judgment in favor of Sharp because a jury could determine that
Sharp’s decision was motivated by her disability and not by her inability to perform her work
without additional leave time.

      The trial court comprehensively reviewed the applicable law, procedural history, and
undisputed facts of this case in its July 2013 order. The trial court stated:



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       [Ms. Jones] admits that she needed a reasonable accommodation to perform
       her job at Sharp. She admits she was unable to work from September 20 until
       December 15, 2009. The District Court found these facts to be undisputed.
       [Ms. Jones] also admits that attendance, being at work, is a function of her job
       at Sharp. The TDA states that an employer cannot discriminate against an
       employee with a disability “unless such disability to some degree prevents the
       applicant from performing the duties required by the employment sought or
       impairs the performance of the work involved.” T.C.A. § 8-50-104(b). [Ms.
       Jones’] condition certainly prevented her from performing her job duties at
       Sharp. Based on the statute itself, [Ms. Jones’] admission negates an essential
       element of her claim – that she could [] perform her job as required. As such,
       this Court should “end its inquiry” into [Ms. Jones’] TDA claim and grant
       Sharp summary judgment.

        As we noted in Bennet, summary judgment in favor of a defendant employer in an
action under the TDA is appropriate if the employer affirmatively negates one of the three
required elements. Bennet, 315 S.W.3d at 852. In this case, it is undisputed that Ms. Jones’
disability prevented her from performing her duties absent an accommodation by Sharp in
the form of additional leave time. We agree with the trial court that, under the undisputed
facts, summary judgment in favor of Sharp was appropriate in this case.

       Ms. Jones alternatively argues that Tennessee should adopt a reasonable
accommodation component comparable to that provided by the ADA. She asserts that she
“would no doubt be entitled to a remand in this case” if the TDA included such a
requirement. We have long-recognized that the TDA does not contain a reasonable
accommodation requirement. In Pruett v. Wal-Mart Stores, Inc., we stated:

       [u]nlike its federal counterpart, the portion of the THRA that prohibits
       discrimination on the basis of disability does not require employers to provide
       disabled workers with reasonable accommodations.

Pruett v. Wal-Mart Stores, Inc., No 02A01-9610-CH-00266, 1997 WL 729260, at *13 (Tenn.
Ct. App. Nov. 25, 1997). Whether Tennessee should adopt a reasonable accommodation
requirement comparable to that contained in the ADA is a matter to be determined by the
General Assembly.

                                          Holding

       In light of the foregoing, summary judgment in favor of Sharp is affirmed. Costs on
appeal are taxed to the Appellant, Lataynia Jones, and her surety, for which execution may

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issue if necessary. This matter is remanded to the trial court for enforcement of the judgment
and the collection of costs.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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