                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0881n.06

                                         No. 14-1362
                                                                                    FILED
                           UNITED STATES COURT OF APPEALS                       Nov 21, 2014
                                FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk


MARK JUDGE,                                    )
                                               )
           Plaintiff-Appellant,                )         ON APPEAL FROM THE
                                               )         UNITED STATES DISTRICT
v.                                             )         COURT FOR THE WESTERN
                                               )         DISTRICT OF MICHIGAN
LANDSCAPE FORMS, INC.,                         )
                                               )
                                                                 OPINION
           Defendant-Appellee.                 )
                                               )


Before: MOORE and COOK, Circuit Judges, and STEEH, District Judge.*

       KAREN NELSON MOORE, Circuit Judge. In this case alleging violations of the

Americans with Disabilities Act (“ADA”) for failure to accommodate and retaliation in violation

of the Family Medical Leave Act (“FMLA”), plaintiff-appellant Mark Judge appeals the district

court’s grant of summary judgment to defendant-appellee Landscape Forms, Inc. (“Landscape

Forms”) on his entire complaint. For the reasons set forth below, we AFFIRM the district

court’s grant of summary judgment to Landscape Forms.

                                     I. BACKGROUND

       Mark Judge began working at Landscape Forms on July 23, 2007, in the woodshop. R. 1

(Compl. ¶ 8) (Page ID #2); R. 32-1 (Judge Offer Letter) (Page ID #107). On April 30, 2011,

Judge injured his biceps muscle in his right shoulder while working at home. R. 1 (Compl. ¶ 10)

(Page ID #2). In early May 2011, Judge saw Dr. Thomas Ryan, who told him that he would
       *
       The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 14-1362
Judge v. Landscape Forms, Inc.


need surgery and that the recovery time usually took four to six months. R. 46-4 (Judge Dep. at

62) (Page ID #523). After this appointment, Judge met with Karen Phillips to discuss his

upcoming shoulder surgery and to learn how to request FMLA leave. R. 42-1 (Judge Aff. ¶ 1)

(Page ID #410). Phillips works for Landscape Forms as a Benefits Specialist in the Human

Resources Department. R. 46-5 (Phillips Dep. at 14–15) (Page ID #546). Judge alleges that he

“recall[s] telling . . . Karen Phillips at the time I reported my injury and discussed getting a leave

under the FMLA that the recovery period from impending surgery would be 4–6 months, based

on what my doctor had told me.” R. 42-1 (Judge Aff. ¶ 1) (Page ID #410). Phillips denies that

Judge ever gave any estimate of how long his recovery would take. R. 46-5 (Phillips Dep. at 42–

43) (Page ID #553).

         On May 18, 2011, Dr. Thomas Ryan performed surgery on Judge. R. 42-2 (Ryan Aff.

¶ 2) (Page ID #412). Five days later on May 23, Dr. Ryan’s office submitted the FMLA

Certification of Health Care Provider Form to Landscape Forms, which stated that Judge would

be incapacitated and unable to perform his job from May 18 through August 10, 2011. R. 43-5

(FMLA Cert. Form at 3) (Page ID #447). Judge was approved for FMLA leave on that day to

August 9, 2011. R. 43-4 (Brandenburg Letter) (Page ID #442). Judge also was approved for

long-term-disability benefits beginning July 28, 2011. R. 44-3 (Reznicek Letter) (Page ID

#456).

         On June 6, 2011, Judge spoke with Phillips and reported that his arm would be in a cast

until July 7, 2011, at which point he would contact Landscape Forms. R. 46-4 (Judge Dep. at



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61) (Page ID #522); R. 46-1 (Phillips Notes) (Page ID #476). The next time Judge and Phillips

spoke was in early August, when Judge informed Phillips that he could not use his right arm and

needed six weeks of therapy. R. 46-4 (Judge Dep. at 65) (Page ID #523); R. 46-1 (Phillips

Notes) (Page ID #476). Judge also presented Phillips with a new set of work restrictions, but

after Phillips asked for clearer restrictions, Judge did not follow up and did not return to work.

R. 46-4 (Judge Dep. at 78–80) (Page ID #527); R. 46-5 (Phillips Dep. at 92) (Page ID #566).

They agreed that Judge would check in again around September 16, 2011. R. 46-1 (Phillips

Notes) (Page ID #476).

       After not hearing from Judge, Phillips left Judge a voicemail on September 26, 2011

asking for updated information on his work restrictions. R. 46-5 (Phillips Dep. at 93) (Page ID

#566). In response, Judge faxed a note dated September 23, 2011, from Dr. Ryan with a new set

of work restrictions, but the note did not include an expected or estimated date of Judge’s full

recovery. R. 46-4 (Judge Dep. at 76–77) (Page ID #526); R. 44-5 (Ryan Letter) (Page ID #460).

That same day,1 Phillips called Judge back and informed him that Landscape Forms was

administratively terminating him because it could not accommodate his existing restrictions,

could not leave his position open indefinitely, and needed to maintain appropriate staffing levels.

R. 46-5 (Phillips Dep. at 50–51) (Page ID #555). Judge claims that he then told Phillips that he

“should be released and be able to go back to work full duty with no restrictions” by November


       1
       Phillips alleges that the phone call took place on September 28. R. 46-5 (Phillips Dep. at
51) (Page ID #555). For the purposes of summary judgment, we assume it took place on
September 26.


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15, 2011. R. 46-4 (Judge Dep. at 87–88) (Page ID #529). Phillips denies that Judge told her the

November 15 date. R. 46-5 (Phillips Dep. at 54–55) (Page ID #556). Phillips then sent Judge a

letter, dated September 28, 2011, stating that Judge was being administratively terminated,

giving the same reasons Phillips had provided in the September 26, 2011 phone conversation. R.

46-4 (Judge Dep. at 85–86) (Page ID #528–29); R. 32-3 (Termination Letter) (Page ID #158).

       On October 11, 2012, Judge filed a complaint in the U.S. District Court for the Western

District of Michigan against Landscape Forms alleging two counts: (1) that Landscape Forms

violated the ADA and Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”) by

intentionally discriminating against him and by failing to accommodate his disability because it

had not granted him leave until mid-November 2011; and (2) that Landscape Forms violated the

FMLA by retaliating against him for taking leave. R. 1 (Compl. ¶ 27–38) (Page ID #4–5).

Landscape Forms filed a motion for summary judgment on Judge’s entire complaint. R. 32

(Def.’s Mot. for Summ. J.).

       The district court granted summary judgment to Landscape Forms on Judge’s entire

complaint. The district court held that Judge had established a genuine issue of material fact that

his torn bicep rendered him disabled within the meaning of the ADA, but not under the

PWDCRA. R. 51 (Dist. Ct. Op. at 10–11) (Page ID #599–600). However, the district court held

that Judge had failed to establish a genuine issue of material fact that he had requested the

accommodation of leave because he had not alleged anywhere in the record that he specifically

asked for leave. Id. at 14–15 (Page ID #603–04). Additionally, the district court held that Judge



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Judge v. Landscape Forms, Inc.


had failed to establish a genuine issue of material fact that he had requested a reasonable

accommodation because at the time of his termination he had not given Landscape Forms a

sufficiently definite date of return. Id. at 12–13 (Page ID #601–02). Regarding Judge’s FMLA

retaliation claim, the district court held that Judge had met his burden to establish a prima facie

case of retaliation. Id. at 19–20 (Page ID #608–09). However, the district court held that Judge

had not met his burden to establish that Landscape Forms’ legitimate, nondiscriminatory reason

for firing him—that Landscape Forms needed to maintain staffing levels and Judge had not

provided a date on which he would return to work without restrictions—was pretext. Id. at 20

(Page ID #609).

       Judge appealed the district court’s grant of summary judgment. He argues that the

district court erred in dismissing his failure-to-accommodate claim under the ADA and his

FMLA retaliation claim. Appellant Br. at 3.2

                                 II. STANDARD OF REVIEW

       “We review de novo a district court’s order granting summary judgment.” Kleiber v.

Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). Summary judgment is warranted “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In reviewing the district court’s



       2
         Judge did not appeal the denial of his intentional-discrimination claims under the ADA
or PWDCRA, or the denial of his failure-to-accommodate claim under the PWDCRA. Id.
Therefore, these claims are forfeited. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 318
(6th Cir. 2005).


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Judge v. Landscape Forms, Inc.


decision to grant summary judgment, we must view all evidence in the light most favorable to

the nonmoving party.” Kleiber, 485 F.3d at 868.

                                       III. ADA CLAIM

       The ADA prohibits employers from discriminating against qualified employees with a

disability on the basis of that disability.   It defines discrimination to include “not making

reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability who is an applicant or employee, unless [the employer] can

demonstrate that the accommodation would impose an undue hardship on the operation of the

business.” 42 U.S.C. § 12112(a), (b)(5)(A).

       In order to establish a prima facie case of a failure to accommodate claim under the

ADA, “a plaintiff must show that: (1) she is disabled within the meaning of the Act; (2) she is

otherwise qualified for the position, with or without reasonable accommodation; (3) her

employer knew or had reason to know about her disability; (4) she requested an accommodation;

and (5) the employer failed to provide the necessary accommodation.” Johnson v. Cleveland

City Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011) (citing DiCarlo v. Potter, 358 F.3d

408, 419 (6th Cir. 2004)). Once a plaintiff establishes a prima facie case, the employer then

bears the burden to demonstrate that any particular accommodation would impose an undue

hardship. Id. at 983 (citing DiCarlo, 358 F.3d at 419).

       The only issues raised on appeal are whether Judge actually requested an

accommodation, and if he did request one, whether it was reasonable.



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       The EEOC regulations interpreting the ADA “place[] the initial burden of requesting an

accommodation on the employee.” Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046

(6th Cir. 1998). Once that request is made, “the employer has a duty to engage in an ‘interactive

process’ to ‘identify the precise limitations resulting from the disability and potential reasonable

accommodations that could overcome those limitations.’” Melange v. City of Ctr. Line, 482 F.

App’x 81, 84–85 (6th Cir. 2012) (quoting Kleiber, 485 F.3d at 871). “But if the employee never

requests an accommodation, the employer’s duty to engage in the interactive process is never

triggered.” Id. at 85.

       Our 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. On one hand, we have held that

the ADA does not require employees to “use the magic words ‘accommodation’ or even

‘disability.’” Leeds v. Potter, 249 F. App’x 442, 449 (6th Cir. 2007). On the other hand, “[t]he

employer is not required to speculate as to the extent of the employee’s disability or the

employee’s need or desire for an accommodation.” Gantt, 143 F.3d at 1046–47. The employee

also must make it clear that the request is being made because of the employee’s disability.

Leeds, 249 F. App’x at 449.

       Judge argues that Landscape Forms should have granted him a leave of absence until

mid-November 2011, when he ultimately was released to work without restrictions. However,

Judge fails to identify any statement he made before he was fired that could be construed as a

request for leave until then. Judge’s brief on appeal focuses on whether leave until mid-



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Judge v. Landscape Forms, Inc.


November was reasonable—i.e., whether Judge needed to give a precise return date when he

alleges Landscape Forms never asked for one—without identifying a clear moment when Judge

alleges he actually requested leave for even an estimated timeframe in the first place. When

asked at oral argument when precisely Judge requested leave for this timeframe, Judge pointed to

two things:    (1) his request for long-term-disability benefits and (2) his statement in the

September 26 phone call that his doctor told him he would be released to work without

restrictions in mid-November.

       Judge’s request for long-term-disability benefits cannot be construed as a request for an

accommodation of leave to mid-November. Landscape Forms used a third-party company to

process its short-term- and long-term-disability claims. The only information Landscape Forms

received about Judge’s long-term-disability claim was that his request was approved; the letter

from the third-party company stated that “[d]ue to the confidential nature of the approval

documentation, we are unable to provide you with a copy of the actual letter sent.” R. 44-3

(Reznicek Letter) (Page ID #456). The letter says nothing about a request for leave, nor does it

include any timeframe regarding Judge’s ability to return to work without restrictions. Id.

       Judge’s alleged statement in the September 26 phone call likewise fails as a request for

an accommodation because Judge concedes that he made the request only after Phillips told him

that he was being fired. R. 46-4 (Judge Dep. at 87–88) (Page ID #529). For the purposes of

summary judgment, we assume that Judge did make the September 26 statement. Moreover,

even if Judge did not specifically request leave until that date, it was implied in the context of the



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Judge v. Landscape Forms, Inc.


conversation that he was seeking to remain on leave until that date. However, we have held that,

as part of establishing a failure-to-accommodate claim under the ADA, an employee must

demonstrate that he or she requested an accommodation before being fired. In Melange, we

affirmed the district court’s grant of summary judgment for an employer because the plaintiff

could not show that he “requested a reasonable accommodation prior to his termination.”

Melange, 482 F. App’x at 84 (emphasis added); see also Blazek v. City of Lakewood, 576 F.

App’x 512, 517–18 (6th Cir. 2014) (“Even with these elements established, Plaintiff's claim falls

[sic] on the ground that he did not request any accommodation from Defendant prior to his

termination. The first time that Plaintiff raised the possibility of moving to a non-driving

position was during his union grievance, several months after he was fired.”). As the Melange

court explained, the employer must first be given a chance to grant or deny an accommodation

while the employee is still presently employed in order for the employee to allege that the

employer failed to accommodate him or her. Melange, 482 F. App’x at 86.

       Because we hold that Judge did not adequately request an accommodation, we do not

consider whether his request for leave, if properly made, would have been reasonable.

                             IV. FMLA RETALIATION CLAIM

       The FMLA prohibits an employer from retaliating against an employee who takes leave

under the FMLA. Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006). To establish a

claim of retaliation, a plaintiff must demonstrate that (1) she engaged in a protected activity, i.e.

notifying the defendant of her intent to take leave under the FMLA; “(2) she suffered an adverse



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employment action[;] and (3) that there was a causal connection between the exercise of her

rights under the FMLA and the adverse employment action.” Id. If a plaintiff’s claim is based

on circumstantial evidence, McDonnell Douglas Corp. v. Green’s burden-shifting analysis

applies. 411 U.S. 792 (1973); Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 315 (6th

Cir. 2001).     The burden then shifts to the defendant to articulate some legitimate,

nondiscriminatory reason for terminating the plaintiff. McDonnell Douglas, 411 U.S. at 802–04.

The plaintiff then has the burden of showing that the defendant’s reasons are merely a pretext for

discrimination. Skrjanc, 272 F.3d at 315.

       The district court held that Judge had met his burden to establish a prima facie case of

retaliation since he had (1) requested and taken FMLA leave, a protected activity; (2) suffered an

adverse employment action, termination; and (3) there was a causal connection between the

exercise of FMLA rights and the adverse employment action based on the two months temporal

proximity between the end of his FMLA leave and his firing. R. 51 (Dist. Ct. Op. at 19–20)

(Page ID #608–09). Additionally, the district court held that Landscape Forms had met its

burden of producing a legitimate, nondiscriminatory reason—that Landscape Forms needed to

maintain staffing levels and Judge had not provided a precise date on which he would return to

work without restrictions. Id. at 20 (Page ID #609). However, the district court held that Judge

had not met his burden of proving Landscape Forms’ articulated reason for firing him was

pretext. The district court found that the record did not support Judge’s pretext argument—that




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Judge v. Landscape Forms, Inc.


Landscape Forms’ reason for firing him was false because he did give a precise date for his

return to work. Id. (Page ID #609).

        Two issues have been raised on appeal: (1) whether Judge met his burden of establishing

the third element of a prima facie case of retaliation, that there was a causal connection between

his taking FMLA leave and his termination, and (2) whether Judge met his burden of establishing

pretext.

        We have held that the causal connection between the protected activity and the adverse

employment action necessary for a prima facie case of retaliation can be established solely on the

basis of close temporal proximity. Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 283–84 (6th

Cir. 2012) (quoting DiCarlo, 358 F.3d at 421) (“[T]his Circuit has embraced the premise that in

certain distinct cases where the temporal proximity between the protected activity and the

adverse employment action is acutely near in time, that close proximity is deemed indirect

evidence such as to permit an inference of retaliation to arise.”); Mickey v. Zeidler Tool & Die

Co., 516 F.3d 516, 525 (6th Cir. 2008) (“Where an adverse employment action occurs very close

in time after an employer learns of a protected activity, such temporal proximity between the

events is significant enough to constitute evidence of a causal connection for the purposes of

satisfying a prima facie case of retaliation.”).

        Judge has met his burden of establishing a causal connection between his taking of

FMLA leave and his termination. We have found sufficient evidence of a causal connection

where the time between when the employee’s leave expired or the employee requested leave and



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Judge v. Landscape Forms, Inc.


the employee’s termination was two to three months. Clark v. Walgreen Co., 424 F. App’x 467,

473 (6th Cir. 2011) (“[T]he court correctly credited the temporal proximity [two months] of [the

plaintiff’s] leave and his firing as sufficient evidence of a causal connection between the two.

Our precedents stand for the principle that timing matters.”); Bryson v. Regis Corp., 498 F.3d

561, 571 (6th Cir. 2007) (holding that a causal connection at the prima facie stage was

established by the three months that passed between the plaintiff’s request for FMLA leave and

her termination on the day she was scheduled to return to work). Two months or less passed

between the date on which Judge’s FMLA leave expired (August 9, 2011) and when he was

terminated (September 26, 2011). Landscape Forms characterizes the temporal proximity of

Judge’s claim as five months because it focuses on the time between when Landscape Forms

first learned of Judge’s request for FMLA leave (May 2011) and his termination. Appellee Br. at

34. However, we have measured temporal proximity from the date FMLA leave expired, not just

when the employee first requested it, for the purposes of measuring temporal proximity. Clark,

424 F. App’x at 473. Thus, Judge has met his burden of establishing a prima facie case of

retaliation.

        However, Landscape Forms also met its burden of articulating a legitimate,

nondiscriminatory reason for firing Judge—that it needed to maintain staffing levels and Judge

had not provided a date on which he could return to work without restrictions. We have held that

a defendant can meet its burden of articulating a legitimate, nondiscriminatory reason in FMLA

retaliation cases when it “fires an employee who is indisputably unable to return to work at the



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Judge v. Landscape Forms, Inc.


conclusion of the 12-week period of statutory leave.” Edgar, 443 F.3d at 506–07. At the time he

was fired, Judge could not return to work without restrictions and had not given Landscape

Forms even an estimated return to work date.

       In support of his argument that Landscape Forms’ reason for firing him was pretextual,

Judge relies on the temporal proximity between the expiration of his FMLA leave and his

termination, Appellant Br. at 35; that because Landscape Forms violated the ADA in terminating

him, any reason given for his termination is insufficient because “a reason that violates the law

cannot be considered a legitimate, non-retaliatory reason,” id. at 36; and his claim that other

employees who had taken FMLA leave in the past had been fired soon after, id. at 35.

Landscape Forms argues that Judge’s only actual evidence that its reason for terminating him

was pretextual is temporal proximity, and that proximity cannot by itself establish pretext.

Appellee Br. at 33-34.

       We have held that a plaintiff may meet his or her burden to “demonstrate pretext by

showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the

defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”

Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000). In contrast to the role of temporal

proximity in the plaintiff’s prima facie case, we have held that “temporal proximity is

insufficient in and of itself to establish that the employer’s nondiscriminatory reason for

discharging an employee was in fact pretextual.” Skrjanc, 272 F.3d at 317; see also Seeger, 681

F.3d at 285 (quoting Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012)) (“Unlike its role



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Judge v. Landscape Forms, Inc.


in establishing a prima facie case, ‘the law in this circuit is clear that temporal proximity cannot

be the sole basis for finding pretext.’”).

        Judge has not provided sufficient evidence of pretext. Judge’s argument that Landscape

Forms’ reason for firing him was illegitimate because, in firing him, Landscape Forms violated

the ADA, is unpersuasive because Landscape Forms did not violate the ADA in terminating

Judge. Judge’s claim that three other employees who had taken FMLA leave were shortly

afterwards fired by Landscape Forms also does not support his claim of pretext in his particular

case. Evidence that Landscape Forms retaliated in the past against employees similarly situated

to Judge might be some evidence that Landscape Forms retaliated against Judge, but Judge does

not explain how the facts of those cases are similar to his or show that Landscape Forms actually

retaliated against those employees.

        Thus, Judge is left only with the temporal proximity between the expiration of his FMLA

leave and his termination. But, as explained above, under our precedent temporal proximity

alone is insufficient to establish pretext.

                                         V. CONCLUSION

        For the reasons set forth above, we AFFIRM the district court’s grant of summary

judgment to Landscape Forms.




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