                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0290n.06

                                              No. 14-5609

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                                FILED
                                                                                          Apr 17, 2015
GENE PARKS,                                          )
                                                                                     DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )
v.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
UPS SUPPLY CHAIN SOLUTIONS, INC.,                    )    EASTERN DISTRICT OF KENTUCKY
                                                     )
       Defendant-Appellee.                                   )
                                                     )

BEFORE: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.*

       STEEH, District Judge. Plaintiff Gene Parks appeals from the United States District Court

for the Eastern District of Kentucky’s grant of summary judgment in favor of his employer,

defendant UPS Supply Chain Solutions (“UPS”). Parks filed this action alleging retaliation and

interference theories under the Family and Medical Leave Act (“FMLA”) when he was terminated

after requesting a leave of absence for neck surgery. Parks also alleges that UPS failed to

accommodate his disability under the Kentucky Civil Rights Act (“KCRA”) by refusing to grant him

leave to have surgery. The district court granted UPS’s motion for summary judgment and Parks

appeals. We AFFIRM the district court’s grant of summary judgment for UPS.




             *
             The Honorable George Caram Steeh, United States District Judge for the Eastern District of
     Michigan, sitting by designation.

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No. 14-5609, Parks v. UPS Supply Chain Solutions


                                       I. BACKGROUND

A. Factual Background

       Mr. Parks was hired by UPS in February, 1999 to work at its Hebron, Kentucky campus as

a material handler. Parks drove a forklift, moved boxes, picked products and controlled inventory.

When a material handler puts a box away in the warehouse, the location must be accurately recorded

in the computer system so “pickers” can easily find and retrieve that package later.

       From 2003 through 2009, Parks requested and was approved for FMLA leave on six separate

occasions. Most of these requests were for intermittent leave, were to care for his wife as opposed

to being for his own health issues, and were at a time when Parks reported to a different supervisor.

In 2009, Parks began reporting to Jennifer Valdez. At that time, Parks’s FMLA paperwork indicated

that he may need surgery to address neck pain caused by a herniated disc. In February of 2010,

Parks was approved for intermittent FMLA leave, which allowed him to take up to twelve weeks

of leave per year to cope with flare-ups or to receive medical treatment related to his neck pain. His

last FMLA certification, submitted in January 2011, also indicated that Parks would likely undergo

surgery in the future, at which time he would require continuous leave to recover from the

procedure.

       Parks received two warnings for failure to meet productivity requirements in May of 2010,

and claimed that his health conditions were preventing him from working as quickly as he should.

That month, Parks submitted updated FMLA paperwork to HR reflecting his limited ability to drive

a forklift, bend, stoop and lift. UPS approved this request and updated his FMLA status to reflect

the new restrictions. A year later, on May 17, 2011, Parks received a written final warning for

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No. 14-5609, Parks v. UPS Supply Chain Solutions


quality errors for putting boxes away upside down. In response, Parks explained to Valdez and

Tony Lovelace, his other supervisor, that he was not as fast as he used to be due to his neck

condition. Both supervisors advised Parks that the FMLA approval only covers missed time, not

performance errors, and recommended that he submit new FMLA paperwork if he felt he could not

do his job. Parks did not submit such paperwork.

       On May 27, 2011, the Friday before the Memorial Day weekend, Parks left work due to a

flare-up of his medical condition. He returned to work after the holiday on Tuesday, May 31, and

alleges he told his supervisors that he needed extended FMLA leave in order to have neck surgery

which was scheduled by his doctor for June 16, 2011. Lovelace and Valdez did not recall being

informed of the surgery that morning, although they acknowledged they were aware of his general

need for surgery in the future. Parks was terminated from his employment one to two hours after

he says he notified Lovelace and Parks of his need for FMLA leave, allegedly due to a performance

issue. Along with his employment, Parks lost his health insurance and claims he was forced to

cancel his surgery.

       UPS’s “progressive discipline policy” addresses various categories of employee infractions,

including sub-par performance, safety violations, misconduct, rules violations, tardiness and

insubordination. Supervisors issue informal verbal warnings to first time offenders, then issue

written first, second, third and final warnings for subsequent infractions. Warnings “roll-off” the

employee’s record after a given amount of time, usually one year, and do not carry over from one

category to another.




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No. 14-5609, Parks v. UPS Supply Chain Solutions


       Parks had a number of write ups over the course of his employment. Focusing only on the

relevant time period of approximately one year prior to his termination on May 31, 2011, Parks had

the following performance issues and corresponding discipline:

       •       May 17, 2010, Parks received a verbal performance warning for failure to meet

               productivity standards and for having large gaps of time between restocking tasks.

       •       May 27, 2010, Parks received a first written performance warning for failure to meet

               productivity standards.

       •       October 22, 2010, Parks received a final written warning for conduct/behavior

               arising out of an incident where he was considered to be insensitive in approaching

               co-workers from UPS’s Honeywell facility when the loss of that contract was

               announced.

       •       December 15, 2010, Parks received a first written performance warning for quality

               errors for putting cartons away on a shelf, but failing to log the location into the

               computer (a “Status 65" error).

       •       January 7, 2011, Parks received a second written performance warning for quality

               errors when an audit revealed he physically put away four boxes, but the system

               indicated the boxes still needed to be put away. This is referred to as a “Status 10,”

               and the warning indicated it was “one of several examples.”

       •       May 11, 2011, Parks received a third written performance warning for quality errors

               for putting six boxes away upside down.




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No. 14-5609, Parks v. UPS Supply Chain Solutions


       •       May 17, 2011, Parks received a final written performance warning for quality errors

               for putting seven boxes away upside down.

       •       During the week of May 23, 2011, Parks did not put a box in the location he entered

               into the computer system. The error was discovered by Valdez during the week of

               May 23, 2011, but was not documented until May 31, 2011.

       •       May 31, 2011, Parks committed a “Status 65" error.

Each of the written warnings indicated that “future issues will result in discipline up to and including

termination.” Most of Parks’ performance warnings were for quality errors, and according to

Valdez, he declined all retraining opportunities that his supervisors offered to him.

       On May 31, 2011, Valdez began the process of issuing Parks’s discipline for the two most

recent performance quality errors. At this time, Valdez recognized that Parks was already on a final

written warning for performance quality errors.           After conferring with Lovelace, Valdez

recommended to HR Representative Julie Welch that Parks’s employment be terminated. The

decision to terminate was approved by HR Manager Michelle Chavez, who made the decision based

on Parks’ discipline history. Chavez was not aware of Parks’s FMLA certification.

       Parks was terminated at a meeting attended by Valdez, Lovelace and Welch. During the

meeting, Parks requested that they continue to employ him until he had his surgery so he could

receive benefits. UPS refused the request and went forward with the termination.

B. Procedural Background

       Parks filed his complaint in the Boone County, Kentucky, Circuit Court on September 13,

2011. UPS removed the case to the United States District Court for the Eastern District of Kentucky


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No. 14-5609, Parks v. UPS Supply Chain Solutions


on December 27, 2011. The District Court granted UPS’s motion for summary judgment on Parks’s

claim for FMLA retaliation, finding that there was not sufficient evidence in the record for a jury

to find that UPS’s proffered reason for discharge was pretextual. The court denied summary

judgment as to Parks’ claims for FMLA interference and failure to accommodate under the KCRA

due to an issue of fact as to whether Parks requested FMLA leave or an accommodation prior to his

discharge.

       UPS filed a motion for partial reconsideration, seeking summary judgment as to the

interference and failure to accommodate claims. The court granted the motion on April 16, 2014

and dismissed Parks’s complaint. Parks timely filed this appeal.

                                         II. ANALYSIS

A. Standard of Review

       This Court conducts a de novo review of the district court’s grant of summary judgment.

Thom v. American Standard, Inc., 666 F.3d 968, 972 (6th Cir. 2012). 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). The movant bears the

initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). “Once the moving party satisfies its initial burden, the burden

shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.”

Mosholder v. Barnhardt, 679 F.3d 443, 448-49 (6th Cir. 2012) (citation omitted). “In reviewing the

district court’s decision to grant summary judgment, we must view all evidence in the light most




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No. 14-5609, Parks v. UPS Supply Chain Solutions


favorable to the nonmoving party.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir.

2007).

B. FMLA Retaliation

         The FMLA entitles an eligible employee to as many as twelve weeks of leave during any

twelve month period if the employee has a “serious health condition that makes the employee unable

to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). There is

no dispute in this case that Parks is an eligible employee under the FMLA, or that his herniated disc

constitutes a “serious health condition.”

         The retaliation theory of recovery under the FMLA is based on discrimination, and asks

whether the employer took the adverse action because of a prohibited reason. The FMLA makes

it unlawful for any employer to “discharge or in any other manner discriminate against any

individual for opposing any practice made unlawful by [the Act].” 29 U.S.C. § 2615(a)(2). “The

employer’s motive is relevant because retaliation claims impose liability on employers that act

against employees specifically because those employees invoked their FMLA rights.” Edgar v. JAC

Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006).

         Absent direct evidence of unlawful conduct, FMLA retaliation claims are analyzed under

the burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Under this framework, if the plaintiff makes a prima facie showing, “the

burden shifts to the defendant to offer evidence of a legitimate, non-discriminatory reason for the

adverse employment action.” Bryson v. Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). “‘[T]he

defendant must clearly set forth, through the introduction of admissible evidence,’ reasons for its


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No. 14-5609, Parks v. UPS Supply Chain Solutions


actions which, if believed by the trier of fact, would support a finding that unlawful [retaliation] was

not the cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, and n.8 (1981)). Defendant’s

burden is one of production, not persuasion, and can involve no credibility assessment. Id. at 509.

If the defendant is successful, the burden “shifts back to the plaintiff to show that the defendant’s

proffered reason is a pretext for unlawful discrimination.” Bryson, 498 F.3d at 570.

       1. Prima Facie Case

       To establish a prima facie case of FMLA retaliation, Parks must establish by a preponderance

of the evidence: (1) that he engaged in an activity protected under the FMLA; (2) that his exercise

of his protected rights was known to the defendant; (3) that he suffered an adverse employment

action; and (4) that a causal connection exists between the protected activity and the adverse

employment action. Arban v. West Pub. Corp., 345 F.3d 390, 404 (6th Cir. 2003). The only

disputed factor of Parks’s prima facie case is whether there is a causal connection between his

request for FMLA leave and his discharge. For purposes of argument, UPS is willing to concede

that Parks meets this burden and has established a prima facie case of retaliation.

       2. Legitimate Nondiscriminatory Reason

       The burden shifts to UPS to present evidence of a legitimate, non-discriminatory reason for

terminating Parks. UPS argues that it terminated Parks not in retaliation for exercising his right to

FMLA leave to have surgery, but because he committed two further performance quality errors

while he was on a final written warning for performance quality. UPS supports its argument with

admissible evidence which, if believed by the trier of fact, would support a finding that UPS had a


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No. 14-5609, Parks v. UPS Supply Chain Solutions


legitimate, non-discriminatory reason for terminating Parks. As the district court wrote in its

opinion, “[c]ourts have held that ‘[p]oor performance is a legitimate, non-discriminatory reason for

terminating a person’s employment’ and is sufficient to satisfy [UPS]’s initial burden under the

McDonnell-Douglas framework.” (Mem. Op. and Ord., p. 18 (quoting Imwalle v. Reliance Medical

Products, Inc., 515 F.3d 531, 546 (6th Cir. 2008))).

       3. Pretext

       UPS has articulated a legitimate, nondiscriminatory reason for Parks’s discharge, namely

repeated performance quality errors; thus the burden shifts back to Parks to show that a genuine

issue of material fact exists concerning whether UPS’s stated reason was a pretext for unlawful

retaliation. To establish pretext, Parks must prove “(1) that the proffered reasons had no basis in

fact, (2) that the proffered reasons did not actually motivate the discharge, or (3) that they were

insufficient to motivate discharge.” Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084

(6th Cir. 1994), overruled on other grounds by Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir.

2009). “[A] reason cannot . . . be a pretext for discrimination unless it is shown both that the reason

was false, and that discrimination was the real reason.” Seeger v Cincinnati Bell Telephone Co.,

LLC, 681 F.3d 274, 285 (6th Cir. 2012) (quoting St. Mary’s Honor Ctr., 509 U.S. at 515).

       Parks, therefore, could establish pretext if he demonstrated option one—that the performance

errors leading to his termination had no basis in fact, showing that impermissible reasons were the

true basis for his termination. But even if he committed the performance errors, Parks could prevail

by showing option two—UPS terminated him for an impermissible reason rather than a legitimate

one, or option three—the performance errors, though they occurred, were insufficient to warrant


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No. 14-5609, Parks v. UPS Supply Chain Solutions


discharge. To establish pretext through these latter two options, Parks is not required to prove that

the proffered reason was objectively baseless; falsity is satisfied by proof that the reason did not

actually motive UPS’s action.

                 a. Performance Errors had no Basis in Fact

          The final performance errors that precipitated Parks’s termination included not putting a box

in the location that he entered into the UPS computer system and putting a box on a shelf to

replenish stock, but failing to log the physical location of the box in the computer system. At his

deposition, Parks opined that UPS’s system of attributing performance errors to employees is

flawed:

          The system is flawed that they use, in my mind and in a lot of other people’s minds,
          because I can put a box in a location, I can scan it into that location, I can drive
          away. Someone could come along and move that box. It could fall down. They may
          not remember where they put it at, where it come from. They can put it somewhere
          else. My name is on that box.

(Parks 12/28/12 Dep., pp. 28-29).

          The Sixth Circuit has adopted a version of the “honest belief rule,” whereby an employer

cannot be held liable if it demonstrates that it had an honest belief in its justifications based upon

reasonable reliance “on the particularized facts that were before it at the time the decision was

made.” Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (quoting

Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). This is true even if the employer’s

decision is ultimately found to be based upon incorrect facts. See, e.g., Blizzard v. Marion Technical

College, 698 F.3d 275, 285-86 (6th Cir. 2012), cert. denied, 133 S. Ct. 2359 (2013). “The key

inquiry in assessing whether an employer holds such an honest belief is ‘whether the employer made


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No. 14-5609, Parks v. UPS Supply Chain Solutions


a reasonably informed and considered decision before taking’ the complained-of action.” Michael

v. Caterpillar Fin. Serv. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007) (quoting Smith, 155 F.3d at

807).

        An employee cannot avoid summary judgment by challenging an employer’s honest belief

that he deserved discipline with hypothetical theories, conjecture, or an unsupported denial of

wrongdoing. See Simpson v. Vanderbilt Univ., 359 F. App’x 562, 570 (6th Cir. 2009); Lattimore

v. Wild Flavors, Inc., 09-Civ-023, 2012 WL 208078, *13 (E.D. Ky. Jan. 23, 2012); Ladd v. Grand

Trunk Western R.R., Inc., 552 F.3d 495, 502-03 (6th Cir. 2009). “To overcome the employer's

invocation of the honest belief rule, the employee ‘must allege more than a dispute over the facts

upon which [the] discharge was based. He must put forth evidence which demonstrates that the

employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its adverse

employment action.’” Blizzard, 698 F.3d at 286 (quoting, Braithwaite v. Timken Co., 258 F.3d 488,

494 (6th Cir. 2001)).

        Ms. Valdez relied on UPS’s internal audit procedure and computer records to determine that

one box had been physically misplaced, meaning that it was not in the location reflected in the

computer, and that another box had not been put away systematically, meaning its location was not

recorded in the computer system. While Parks takes issue with the fairness of UPS’s tracking

system, especially the possibility for blame to be placed on the wrong employee, this criticism does

not rebut Valdez’ honest belief that Parks was the one who committed the errors. Parks has not

offered any evidence from which a reasonable fact finder could conclude that Valdez’s belief that

Parks committed the performance errors was not honestly held.


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No. 14-5609, Parks v. UPS Supply Chain Solutions


               b. Performance Errors Were Insufficient to Motivate Discharge

       In an attempt to show that his performance errors were insufficient to merit termination,

Parks points to other employees who he alleges were not discharged although they were similarly

situated. Before the Court can make a comparison, Parks must demonstrate that the comparables

were similarly situated in all relevant respects and that they engaged in acts of comparable

seriousness. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352-53 (6th Cir. 1998);

Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 751 (6th Cir. 2012). Courts will assess certain

factors in making this determination, such as whether the other employees have dealt with the same

supervisor, have been subject to the same standards, and have engaged in the same conduct without

such differentiating circumstances that would distinguish their conduct or the employer’s response.

Ercegovich, 154 F.3d at 352.

       The Court first notes that Parks compares himself to employees who had different discipline

issues than the performance errors that prompted his termination. Dona Malott and Bill Martin were

each given a final written performance warning for conduct/behavior for hiding from management

toward the end of their shifts to avoid being assigned new tasks. Parks also received a final written

warning for a conduct/behavior issue in October of 2010, however this discipline was separate from

his performance quality issues and did not support his termination. If anything, the evidence shows

that Parks was treated the same as Malott and Martin in that each of them had a final written warning

for conduct/behavior, and none of them was terminated.

       Parks refers to a number of other employees who made similar performance errors as he, but

were allegedly treated more favorably. For example, Cathie Harms made seventeen Status 10


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No. 14-5609, Parks v. UPS Supply Chain Solutions


offenses in one month and was not terminated. However, Harms received only two warnings—a

verbal warning for nine Status 10s and a first written warning for eight Status 10s. Similar to

Harms, Parks was also given two written warnings for groups of errors occurring close together in

time, instead of having them each written up separately.

       Parks asserts that other employees with performance issues were put on a Performance

Improvement Plan (“PIP”), while he was not given this opportunity. Parks compares himself to

Brenda Kinman who was placed on a PIP to improve her speed, and Cathie Harms, who was given

retraining on three occasions to address quality issues. Valdez explained that PIPs were used to

improve productivity or speed, while retraining was used for addressing performance quality errors.

Therefore, a PIP would not have applied to Parks’s performance quality errors. Valdez testified that

Parks declined all of the re-training he was offered by his supervisors—a position to which Parks

does not respond. This does not support Parks’s argument that he was treated less favorably than

similarly situated co-workers.

       Just like Mr. Parks, Ms. Kinman was on a final written warning for performance quality

errors when she was terminated. Parks tries to distinguish Kinman for receiving more write-ups than

he did before she was terminated. Kinman’s final written warning for performance errors indicates

that she had six warnings on file prior to her final written warning. A seventh performance error

resulted in Valdez recommending that Kinman be terminated. Parks also had six separate warnings

on his record when he received his final written performance warning. Two further performance

quality errors prompted his termination. To the extent Parks and Kinman may be considered

similarly situated, there is no significant difference in the way they were treated by UPS.


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No. 14-5609, Parks v. UPS Supply Chain Solutions


               c. Performance Errors Did Not Motivate Discharge

       In her May 31, 2011 email, Valdez wrote that she learned that Parks put away a container

incorrectly “late last week,” and that he had a Status 65 “this morning.” “I was about to complete

the write up. However, since Gene is already on a final written warning for performance, my

recommendation is termination.” Valdez testified consistently at her deposition, additionally stating

that the two new errors had been discovered in an audit. (Valdez Dep. Pp. 82-83).

       Parks attempts to show bias by arguing that the audits were at times described as random and

at other times as targeted. The evidence shows that audits were conducted by pulling a small

percentage of the cartons from every container and checking to make sure they were documented

correctly. In this way, the audits were “random,” and there is no evidence that Parks was targeted

individually as the subject of an audit. There is no dispute that the last two performance errors

occurred, only that UPS has not consistently explained the reason for Parks’s termination. The

record evidence reflects no material inconsistency as to the final two performance errors—the

misplaced box late in the week of May 23, 2011 and the Status 65 error on the morning of the

termination—which precipitated the discharge.

       Parks next points to Lovelace’s purported hostility towards employees who use FMLA leave.

This theory, sometimes referred to as the “cat’s paw” theory of liability, holds an employer liable

when a “biased” intermediate employee’s actions are a “causal factor [in] the ultimate employment

action” such that the animus of the intermediate employee can be attributed to the employer. Staub

v. Proctor Hospital, 562 U.S. 411, 131 S. Ct. 1186, 1193 (2011); Ercegovich, 154 F.3d at 355

(holding that the remarks of a company official who did not make an ultimate employment decision


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No. 14-5609, Parks v. UPS Supply Chain Solutions


still provided proof of discriminatory motive when that official “was in a position to shape the

attitudes, policies, and decisions of the division's managers”).

       In this case, Parks’s evidence consists of his own testimony that Lovelace “frowned upon”

employees taking FMLA leave and that he overheard negative statements made by Lovelace before

2010 regarding employees who took FMLA leave, all of which were directed at someone other than

Parks. Parks also opined that Lovelace was frustrated by Parks taking leave to care for his wife in

2006 or 2007, and “would just clam up and walk away, shake his head and just walk away.”

Significantly, all of Lovelace’s allegedly negative responses occurred several years before Parks’s

termination, and none was directed at Parks’s FMLA requests for leave due to his own medical

condition.

       Parks also offers the sworn statement of Joe Chrisman, a former employee who took several

FMLA leaves and claims he overheard Lovelace make unspecified negative comments about people

who took FMLA leave. Any comment overheard by Chrisman occurred prior to 2009 when he was

terminated by UPS for failing a mandatory drug test after having an accident on the job.

       Generally, this court does not accord great weight to comments made over a year before the

termination at issue. See Rosso v. A.I. Root Co., 97 Fed. App’x 517, 520 (6th Cir. 2004). Such stale

statements do not demonstrate pretext because they are too far removed from the decision-making

process. See Kahl v. The Mueller Co., 173 F.3d 855 (6th Cir. 1999) (table). Each of the negative

reactions to FMLA leave attributed to Lovelace occurred well over one year before Parks requested

FMLA leave for his surgery. Looking at the record as a whole, evidence of Lovelace’s negative




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No. 14-5609, Parks v. UPS Supply Chain Solutions


attitude is too remote in time to give rise to an inference that Parks’s termination was a result of

animus that could be attributed to UPS.

       Parks was terminated within hours after he purportedly gave notice of his intent to take

FMLA leave. For purposes of establishing pretext, “the law in this circuit is clear that temporal

proximity cannot be the sole basis for finding pretext.” Donald v. Sybra, Inc., 667 F.3d 757, 763

(6th Cir. 2012) (citing Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th Cir. 2001)

(“[T]emporal proximity is insufficient in and of itself to establish that the employer’s

nondiscriminatory reason for discharging an employee was in fact pretextual.”)). Of course,

“suspicious timing is a strong indicator of pretext when accompanied by some other, independent

evidence.” Seeger v. Cincinnati Bell Telephone Co., 681 F.3d 274, 285 (6th Cir. 2012) (quoting Bell

v. Prefix, Inc., 321 F. App’x 423, 431 (6th Cir. 2009)).

       In this case, all of the other evidence that Parks points to—inconsistencies in testimony

regarding the reason for his termination, similarly situated co-workers treated more favorably, and

his supervisor’s known hostility toward FMLA leave—do not hold up upon close examination. The

decision of the district court granting defendant’s motion for summary judgment on Parks’s FMLA

retaliation claim is affirmed.

C. FMLA Interference

       The interference theory of liability has its roots in the FMLA’s creation of substantive rights,

which do not permit an employer “to interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right provided [by the Act]”. 29 U.S.C. § 2615(a)(1). “If an employer interferes

with the FMLA-created right to medical leave or to reinstatement following the leave, a violation


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No. 14-5609, Parks v. UPS Supply Chain Solutions


has occurred,” regardless of the intent of the employer. Arban, 345 F.3d at 401. Unlike with the

retaliation theory, the employer’s motive is not relevant to a claim of interference.

       To state a prima facie case of FMLA interference, the plaintiff must demonstrate that (1) he

is an eligible employee; (2) the defendant is an employer as defined in the Act; (3) he was entitled

to leave under the FMLA; (4) he gave the defendant notice of his intention to take leave; and (5) the

defendant denied him FMLA benefits to which he was entitled. Donald, 667 F.3d at 761 (citations

omitted). “As with retaliation claims, the McDonnell Douglas framework applies, meaning that the

employer must respond to the prima facie case with evidence that ‘it had a legitimate reason

unrelated to the exercise of FMLA rights for terminating the employee,’ whereupon the plaintiff

must show pretext.” Tillman v. Ohio Bell Telephone Co., 545 F. App’x 340, 351 (6th Cir. 2013)

(quoting Donald, 667 F.3d at 762).

       In the context of an interference claim, an employee may lawfully be dismissed, preventing

him from taking FMLA leave, if the dismissal would have occurred regardless of the employee’s

request for, or taking of, FMLA leave. Since UPS has produced evidence of a legitimate, non-

discriminatory reason for his termination, the burden shifts back to Parks to show that the stated

reason was merely pretext. As already discussed in relation to the retaliation claim, Parks can point

to nothing that would support a finding of pretext other than that he was terminated on the same day

he claims to have requested medical leave. Temporal proximity alone is insufficient to establish that

the employer’s nondiscriminatory reason for discharging an employee was pretextual. Donald,

667 F.3d at 763.




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No. 14-5609, Parks v. UPS Supply Chain Solutions


       No genuine issues of material fact exist as to Parks’ claim for FMLA interference. The

decision of the district court to grant defendant’s motion for summary judgment is affirmed.

D. KCRA Failure to Accommodate

       The Kentucky Civil Rights Act prohibits discrimination because of disability against “a

qualified individual” with a disability, K.R.S. § 344.040(1)(a)1, 42 U.S.C. § 12112(a), and defines

“discrimination” to include “not making reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a disability”.                          42 U.S.C.

§ 12112(b)(5)(A).        Claims premised upon an employer’s failure to offer a reasonable

accommodation necessarily involve direct evidence of discrimination.

       Parks alleges that UPS discriminated against him “on the basis of his disability by failing to

provide reasonable accommodation to his disability, including, but not limited to, the refusal to

allow him medical leave to seek medical care for his medical condition.” (Complaint para. 27).

UPS acknowledges that it did not accommodate Parks’s request for FMLA leave to have neck

surgery, but argues that it was not obligated to make such accommodations because Parks was not

“otherwise qualified” for his position due to his performance errors.

       In a direct evidence claim brought under the ADA, the employee bears the burden of

establishing that he or she is disabled, but “otherwise qualified” for the position, either without

accommodation, or with a proposed reasonable accommodation. Kleiber v. Honda of Am. Mfg., Inc.,

485 F.3d 862, 869 (6th Cir. 2007) (citing Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 452


             1
              The language of the KCRA provides the same protections as the ADA, so courts use the federal
     framework to analyze claims under the state statute. Bryson v. Regis Corp., 498 F.3d 561, 574 (6th Cir.
     2007).

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No. 14-5609, Parks v. UPS Supply Chain Solutions


(6th Cir. 2004)). The burden then shifts to the employer to prove that the proposed accommodation

imposes an undue hardship upon the employer. For purposes of this appeal, UPS does not dispute

that Parks is disabled. The issue is whether Parks was otherwise qualified for the position with his

requested leave to have surgery, and if so, whether that request for leave imposed an undue hardship

on UPS.

       Parks was on a final written performance warning when he committed two additional

performance errors—one before and one after his alleged accommodation request. UPS contends

that Parks cannot satisfy his burden of proving that leave for surgery is an objectively reasonable

accommodation because granting that accommodation request would have permitted him to use the

request as a shield to avoid accountability for his performance errors.

       Employers are not required to ignore performance errors committed by disabled employees

who have requested an accommodation, so long as those performance errors do not relate to the

employee’s disability. Whitfield v. Tennessee, 639 F.3d 253, 261-62 (6th Cir. 2011). In this case,

Parks has offered no evidence that his final two performance errors were related to his disability.

Parks’s request for leave as an accommodation was not reasonable because it would have required

UPS to forgive the performance error committed before the request and ignore the error committed

shortly after the request, neither of which is required by law.

       The district court’s grant of summary judgment on Parks’s FCRA failure to accommodate

claim is affirmed.




                                                 19
No. 14-5609, Parks v. UPS Supply Chain Solutions


                                      III. CONCLUSION

       Parks fails to establish an issue of fact that UPS’s legitimate nondiscriminatory reasons for

terminating him were pretext. Parks also fails to establish that he was otherwise qualified for his

position such that UPS had a duty to provide a reasonable accommodation to his disability which

included time off for surgery. The district court’s order granting UPS’s motion for summary

judgment is AFFIRMED.




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