                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0530n.06

                                        Case No. 19-5092

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Oct 16, 2019
ADRIANNE POPECK,                                     )                   DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellant,                          )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE WESTERN DISTRICT OF
RAWLINGS, COMPANY, LLC;                              )      KENTUCKY
DEBRA FORD                                           )
                                                     )
       Defendants-Appellees.                         )


       BEFORE: SUTTON, COOK, and THAPAR, Circuit Judges.

       COOK, Circuit Judge. After the Rawlings Company fired Adrianne Popeck, she sued for

discrimination, retaliation, unpaid wages, and wrongful opposition to her application for

unemployment benefits. The district court granted the defendants summary judgment on most of

Popeck’s claims. We AFFIRM.

                                                I.

       Rawlings provides accounting and financial services to health insurers. In 2009, Popeck

started working for Rawlings as an auditor. In that role, she reviewed health insurance claims,

identified inaccurate ones, and re-billed the correct insurance company. At first, she prospered at

work. She landed a series of promotions, winning praise, awards, and a management position

along the way.
Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


       Beginning in 2013, however, things took a turn for the worse. That year, a doctor

diagnosed Popeck with irritable bowel syndrome (“IBS”), a digestive disease that caused her

severe stomach cramping and sudden diarrhea. Rawlings granted Popeck permission to take

intermittent leave under the Family and Medical Leave Act. The intermittent leave allowed

Popeck to arrive to work late or leave early when needed to address her IBS symptoms.

       The next year, senior managers at Rawlings grew concerned with Popeck’s leadership of

her team. Popeck’s supervisor complained that her team members came in late, took excessive

breaks, left early, and generally underperformed. Popeck did not lead by example either; Popeck’s

supervisor found that she too indulged in “excessive breaks.” Concluding that she could not curb

her team’s poor work habits, Rawlings demoted Popeck from her management position back down

to an entry-level auditing position.

       Throughout that year, Popeck continued to use intermittent leave under the FMLA,

exhausting her annual allotment around November. To help Popeck avoid missing work until her

FMLA leave renewed in December, Rawlings invited her to apply for an accommodation under

the Americans with Disabilities Act.      Popeck’s doctor submitted the required paperwork,

identifying only one required accommodation: Popeck needed to come in late or leave early when

her IBS symptoms flared up. Rawlings approved the accommodation until Popeck could resume

FMLA leave.

       Popeck’s long breaks and absences from work continued to raise eyebrows. In November

2014, Rawlings HR generalist (and defendant here) Debra Ford sent Popeck a formal notice of

disciplinary action, stating that Popeck had “accumulated excessive instances of tardiness and

leaving early.” Within a five-week period, the notice explained, she arrived to work late or




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Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


departed early fourteen times. Popeck attributed her absences to various mishaps and personal

pursuits (oversleeping, traffic, trick-or-treating with a friend’s child, etc.), none involving her IBS.

        Popeck switched back to taking intermittent FMLA leave in December 2014.                   The

following year, Popeck’s work performance dwindled. She failed to meet her performance goal

in all but two months. That year, Popeck exhausted her FMLA leave by July. She again sought

an ADA accommodation as a bridge until her next period of FMLA eligibility. This time, however,

Rawlings denied the proposed accommodation.

        Despite lacking sick leave, annual leave, FMLA leave, and ADA leave, Popeck started

missing work more than ever. In September 2015, Ford issued Popeck a second formal notice of

disciplinary action. According to Ford, Popeck’s doctor said that she “may need to come in late

or leave early on occasion” and made no mention of any need for full-day absences. The

disciplinary notice then stated that Popeck exceeded her annual FMLA leave by using all available

60 days and then accumulating an additional 33 days of absences, “resulting in a 59% absenteeism

rate.” Ford warned Popeck that she could miss no more work until she either accrued leave or her

FMLA eligibility renewed.

        In November, Ford sent Popeck an email again admonishing her for taking lengthy breaks

and arriving to work late. Ford told Popeck: “This is your final warning.” Over the next several

weeks, Popeck got to work late four more times. The fourth time, Rawlings fired her, citing her

serial tardiness.

        Popeck sued Rawlings and Ford, alleging that they violated: (1) the ADA and its Kentucky

state-law counterpart; (2) the FMLA; (3) Ky. Rev. Stat. Ann. § 341.990(6)(a), a Kentucky statute

prohibiting wrongful opposition to an application for unemployment benefits; and (4) the Fair




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Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


Labor Standards Act and its state-law counterpart. The district court granted summary judgment

to the defendants on all claims except for one of Popeck’s FLSA claims. Popeck appeals.

                                                 II.

       We review the district court’s grant of summary judgment de novo, viewing the entire

record in a light most favorable to the party opposing summary judgment and drawing all

reasonable factual inferences in that party’s favor. Dowling v. Cleveland Clinic Found., 593 F.3d

472, 476 (6th Cir. 2010). An entry of summary judgment stands only 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).

                                         A. ADA Claims

       The ADA prohibits employers from “discriminat[ing] against a qualified individual on the

basis of disability[.]” 42 U.S.C. § 12112(a). Popeck brings three claims under the ADA: disparate

treatment, failure to accommodate, and failure to engage in the interactive process. All three

claims require her to show that she is a “qualified individual.” See Terre v. Hopson, 708 F. App’x

221, 228 (6th Cir. 2017) (disparate treatment); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862,

869 (6th Cir. 2007) (failure to accommodate); Williams v. AT&T Mobility Servs. LLC, 847 F.3d

384, 395 (6th Cir. 2017) (failure to engage in the interactive process).

       Under the ADA, “qualified” means the ability to “perform the essential functions” of a job

“with or without reasonable accommodation.”             42 U.S.C. § 12111(8).     A “reasonable

accommodation” may include “job restructuring [and] part-time or modified work schedules.” Id.

§ 12111(9)(B). But no employer need excuse a disabled employee’s performance of a job’s

“essential functions”; a proposed accommodation requesting the removal of an essential function

is per se unreasonable. Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998).


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       Because regular, in-person attendance constitutes an essential function of most jobs, an

employee who cannot meet a job’s attendance requirements usually cannot establish qualified-

individual status. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761–63 (6th Cir. 2015) (en banc).

To determine whether Popeck can show qualified-individual status despite her inability to attend

work regularly and in person, we ask two questions. We start by asking whether regular, in-person

attendance constitutes an essential function for auditors at Rawlings. See Williams, 847 F.3d at

391. If so, we then ask whether Popeck proposed a reasonable accommodation that would enable

her to perform that function. See id. at 393; Ford Motor, 782 F.3d at 763.

                                   1. Regular, In-Person Attendance

       At Rawlings, auditors primarily review and audit healthcare claims. Auditors access

information about those claims from secure computers in Rawlings’s offices. Rawlings prohibits

auditors from working remotely because of the “large volume of confidential and HIPAA protected

personal information” in the claims they review. Popeck does not dispute those facts. Because all

auditing work must be done on-site, in-person attendance on a regular basis constitutes an essential

function of Popeck’s job.

       Pointing to other employees that Rawlings allows to work remotely, Popeck sees a factual

dispute about whether in-person attendance constitutes an essential function. But Popeck ignores

a key difference: Those other employees work in IT, not auditing. Rawlings occasionally permits

certain IT workers remote access from home during nights and weekends. Rawlings has never

allowed auditors accessing confidential information, like Popeck, to work remotely. Popeck’s

inapt comparison creates no genuine dispute of fact.




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                                     2. Reasonable Accommodation

       We turn to whether Popeck proposed a reasonable accommodation that would enable her

to attend work in person regularly. See Ford Motor, 782 F.3d at 763. In Ford Motor, we held the

IBS-afflicted plaintiff’s proposed accommodation—working from home for up to four days a

week—unreasonable because it was tantamount to an exemption from the regular, in-person

attendance requirement. Id.

       Here, Popeck proposes an accommodation that seems more modest on its face: occasional

flexibility to arrive late and leave early when her IBS symptoms flare.          Even assuming

(contrafactually) that Popeck’s IBS caused all of her tardiness, early departure, excessive break-

taking, and full-day absences, authorizing Popeck to arrive late or leave early on occasion would

not have come close to solving her attendance problem. Recall that by the end of her employment,

Popeck missed work nearly 60% of the time. Because she evidently requires vastly more flexibility

and time off than she proposes, Popeck fails to suggest an accommodation that would enable her

to attend work in person regularly. See Williams, 847 F.3d at 393–94. She thus cannot establish

that she remains “qualified” for her job. Ford Motor, 782 F.3d at 761. Absent such a showing,

Popeck cannot sustain her ADA claims. The district court correctly granted summary judgment

to the defendants on those claims.

                              B. Confidentiality Violation under the ADA

       Popeck argues that she brought a claim alleging that Rawlings violated the ADA’s

confidentiality provisions and that the district court erred in failing to consider it. Rawlings

responds that Popeck brought no such claim because she raised the confidentiality provisions for

the first time in moving for summary judgment.




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Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


       Popeck’s complaint only off-handedly mentions the ADA’s confidentiality provisions.

She alleges that Rawlings employees reviewed her “confidential FMLA and ADA paperwork,”

that Popeck did not authorize this, and that those alleged actions “violate[d] the company’s

confidentiality policies.” Those allegations address Rawlings’s purported violation of its internal

policies, not the ADA’s confidentiality provisions. Besides, Popeck presents those allegations

during the general narrative portion of her complaint; she fails to link them to any specific claim.

The oblique reference to confidential ADA paperwork did not notify the defendants of a standalone

claim founded on the ADA’s confidentiality provisions. Parties may not obtain relief on legal

claims raised for the first time in summary judgment briefings, so we will not consider Popeck’s

argument here. See Tucker v. Union of Needletrades, Indus., & Textile Emps., 407 F.3d 784, 789

(6th Cir. 2005).

                                  C. FMLA Interference Claim

       The FMLA forbids employers’ interfering with an entitled employee’s exercise of rights

under the act. 29 U.S.C. § 2615(a)(1). In the district court, Popeck advanced multiple theories of

how Rawlings interfered with her FMLA rights. But her opening brief discusses only one theory,

thereby abandoning the others. See Gehrisch v. Chubb Grp. of Ins. Cos., 645 F. App’x 488, 494

(6th Cir. 2016).

       Popeck argues that Rawlings violated its regulatory duty to designate certain instances of

leave as ADA leave rather than FMLA leave. She cites 29 C.F.R. § 825.702, which states that, as

between the FMLA and ADA, “[a]n employer must . . . provide leave under whichever statutory

provision provides . . . greater rights” to the employee. Id. § 825.702(a). But Popeck established

no entitlement to ADA leave, so Rawlings had no duty to grant her leave under that statute. The

district court correctly rejected Popeck’s claim.


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Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


                                     D. Retaliation Claims

       Popeck alleges that Rawlings retaliated against her—by demoting and then firing her—for

engaging in protected activity under the ADA and the FMLA. To establish a prima facie case of

retaliation, Popeck must show: (1) she availed herself of a protected right; (2) Rawlings knew she

was doing so; (3) she suffered an adverse employment decision; and (4) a causal connection existed

between Popeck’s invocation of her rights and Rawlings’s adverse action. See Seeger v. Cincinnati

Bell Tel. Co., 681 F.3d 274, 283 (6th Cir. 2012) (FMLA); Hibbler v. Reg’l Med. Ctr. at Memphis,

12 F. App’x 336, 340 (6th Cir. 2001) (ADA).

       If Popeck makes this prima facie showing, Rawlings must then produce a legitimate,

nondiscriminatory reason for its actions. See Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th

Cir. 1997). If Rawlings offers that explanation, Popeck needs to show that Rawlings’s reason

serves only as “a pretext to hide unlawful retaliation.” Michael v. Caterpillar Fin. Servs. Corp.,

496 F.3d 584, 597 (6th Cir. 2007).

       Even if Popeck established a prima facie case, Rawlings put forward legitimate,

nondiscriminatory reasons for demoting and firing her. Rawlings demoted Popeck because her

excessive breaks during the workday interfered with her leadership of her team. During her

demotion meeting, Popeck did not deny that she took excessive breaks or suggest that the breaks

related to her IBS. Her supervisor explained that he “decided to demote [Popeck] based on her

frequent, extended breaks, which caused her to be unable to fulfill her leadership duties as a Team

Lead.” Rawlings thus had a legitimate reason for demoting Popeck. See Bowie v. Advanced

Ceramics Corp., 72 F. App’x 258, 263 (6th Cir. 2003) (concluding that lack of leadership and

inappropriate on-the-job breaks constitute legitime grounds for demotion).




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          Same goes for Rawlings’s decision to dismiss Popeck for her serial tardiness. Again, that’s

a legitimate, nondiscriminatory reason for termination. See Cecil v. Louisville Water Co., 301 F.

App’x 490, 502 (6th Cir. 2008). Popeck submitted no evidence challenging the record of her

tardiness or suggesting that her tardiness resulted solely from her IBS.

          Popeck contends that Rawlings’s proffered reasons amount to mere pretext. As to her

demotion, Popeck points to evidence that the company does not strictly enforce its break policies

and that other nondisabled workers took excessive breaks without consequence. That argument,

though, does not address the crux of Rawlings’s proffered reason for demoting Popeck: her

ineffective leadership of her team. Even if Rawlings tolerated excessive breaks from other

employees, Popeck provides no evidence that Rawlings tolerated inadequate leadership from other

team leaders. She fails to rebut Rawlings’s legitimate, nondiscriminatory reason for her demotion.

          As to her termination, Popeck charges Rawlings with a “shifting” rationale, suggesting that

Rawlings’s proffered reason acted as cover for something else. But Rawlings’s reason has not

changed: it repeatedly told Popeck that she would suffer disciplinary action “up to and including

termination” for continued “tardiness.” When Rawlings fired Popeck, it contemporaneously cited

her tardiness. We discern no shifting rationales that put Rawlings’s proffered reason in doubt.

The district court correctly granted summary judgment to the defendants on Popeck’s retaliation

claims.

                       E. Interference with Unemployment Benefits Claim

          After Rawlings fired her, Popeck applied for unemployment benefits. In her application,

she alleged that Rawlings fired her because it refused to accommodate her disability. Ford, on

behalf of Rawlings, responded to Popeck’s unemployment application, asserting that the company

fired Popeck because of her absenteeism, tardiness, and excessive breaks. Ford also represented


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that Popeck submitted no paperwork establishing a disability, so Rawlings had no duty to

accommodate her.

       Popeck contends that the portion of Ford’s response about Popeck’s disability paperwork

constitutes a false statement to the Kentucky Division of Unemployment Insurance, violating Ky.

Rev. Stat. Ann. § 341.990(6)(a). That statute provides that “[a]ny person who knowingly makes

a false statement or representation . . . to prevent or reduce the payment of benefits to any worker

entitled thereto . . . [is] guilty of [a felony or misdemeanor, depending on the amount withheld].”

Ky. Rev. Stat. Ann. § 341.990(6)(a). The Kentucky Supreme Court has held that this ostensibly

criminal statute (in combination with another state statute) creates a private right of action for

claimants against purveyors of false information when the false information leads to denial of

benefits. See Hickey v. Gen. Elec. Co., 539 S.W.3d 19, 25 (Ky. 2018).

       Popeck argues that Rawlings and Ford violated this statute when Ford submitted paperwork

stating that Popeck “has not submitted paperwork establishing a disability.” To survive summary

judgment, Popeck must cite facts suggesting that Ford offered the disputed statement with the

intention of preventing Popeck from receiving unemployment benefits. See Ky. Rev. Stat. Ann.

§ 341.990(6)(a). To that end, Popeck points to a smattering of circumstantial evidence: Rawlings

granted her ADA leave in 2014 after Popeck submitted similar paperwork, Popeck asked to have

her disability matters handled by a different HR generalist, Ford failed to attend the state agency

hearing that determined Popeck’s right to benefits, Rawlings did not contest the benefits of another

worker fired for misconduct, and so on. In the aggregate, Popeck contends, she has proffered

enough evidence to warrant putting the issue of Ford’s and Rawlings’s intent to a jury. Her

offering of irrelevant and nonprobative facts, however, fails to move the needle; Popeck cites no

evidence from which a reasonable jury could conclude that Ford sought to prevent Popeck


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Case No. 19-5092, Popeck v. Rawlings Co., LLC, et al.


receiving benefits. Indeed, the only direct evidence of Ford’s intent stands unrebutted: Popeck’s

doctor certified that Popeck’s IBS caused no substantial limitation to a major life activity (a

necessary showing to qualify for ADA protection), Ford testified in her deposition that she relied

on the doctor’s certification in determining that Popeck’s paperwork did not establish a disability,

and Ford “believed the statements to be true[.]” The district court correctly granted summary

judgment to the defendants on this claim.

                                   F. Popeck’s Other Claims

       In the district court, Popeck also asserted claims under the Kentucky Wage and Hour Act,

the Kentucky Civil Rights Act, the FLSA, and sought a declaration that Rawlings had forfeited its

overtime exemption. Having failed to make any reference in her opening brief to any of these

claims, Popeck abandoned them. Gehrisch, 645 F. App’x at 494.

                                                III.

       We AFFIRM.




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