                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0309n.06

                                           No. 19-1952

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
 DIMA SUKARI,                                            )                        May 29, 2020
                                                         )                    DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                             )
                                                         )
 v.                                                      )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
 AKEBONO BRAKE CORPORATION,                              )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF MICHIGAN
        Defendant-Appellee.                              )
                                                         )



       BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.

       CHAD A. READLER, Circuit Judge. Dima Sukari contends she was terminated from

her position at Akebono Brake Corporation due to her osteoarthritis, a bone disorder that qualifies

her as disabled under the Americans with Disabilities Act. But the record reveals legitimate

motivations for her termination, including Sukari’s poor attendance record. That and other

considerations led the district court to grant summary judgment to Akebono. Following review,

we AFFIRM the judgment below.

                                      I. BACKGROUND

       Dima Sukari was hired by Akebono Brake Corporation to work as a compensation analyst

in the company’s human resources department. Initially, Sukari’s primary duties were to prepare

reports and analyze compensation data. Later in her tenure, she was also given customer service

duties, which included meeting with Akebono managers and employees to discuss compensation
Case No. 19-1952, Sukari v. Akebono Brake Corporation


related matters, such as 401(k) plans. Sukari worked at Akebono for about two years before the

company terminated her employment.

       Sukari suffers from osteoarthritis—a joint and bone disorder that affects her movement

ability and daily activities. During particularly bad episodes, Sukari can barely move. Due to her

condition, Sukari requested and received accommodations from Akebono. They included use of

a standing desk at work as well as Family and Medical Leave Act arrangements, which allowed

her to request intermittent FMLA leave. Sukari alleges that she also requested to work from home

during difficult flare-ups, a request she says Eric Torigian, the Vice President of HR, denied,

despite the fact that her previous supervisors had allowed her to do so (a contention those

supervisors deny).

       Sukari’s tenure at Akebono was marked by severe attendance issues. Those issues trace

back to the very start of her time at Akebono—she showed up two days late for her first day.

Sukari says her absence was the result of a car accident on her way into work. Six months later,

in Sukari’s performance review, her supervisor noted that Sukari only “partially meets

expectations” when it comes to work attendance.

       Sometime later, Torigian and another employee, Erin Snygg, attempted to meet with Sukari

to discuss Snygg’s promotion, which made her Sukari’s supervisor. Torigian and Snygg wanted

to discuss Sukari’s attendance issues and to set forward-looking attendance expectations. The first

attempt to meet was rescheduled because Sukari unexpectedly missed the meeting. When the

meeting finally occurred, Snygg explained to Sukari that she needed to have a consistent schedule

during which she could be relied on to be in the office. Sukari’s job was a customer-service-based

position, and Torigian had placed an emphasis on HR employees being present in the office to

enhance HR offerings to employees. Snygg also explained that Sukari’s twelve absences that year



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already exceeded the five “absent-salary days” allowed annually. The meeting ended with an

action item for Sukari: improve attendance. Yet the day after Sukari set her core hours, she left

the office two hours before the end of her established schedule. And over the next month, Sukari

requested an “absent day” to attend to a court matter, even though absent days are designed for

unplanned absences.

       Sukari’s attendance issues manifested again a few weeks later. At the time, Snygg was on

maternity leave and Torigian was acting as Sukari’s supervisor. Sukari had scheduled vacation

leave from February 15 through February 23. Torigian knew that Sukari would be taking a half-

day prior to her scheduled vacation. But on February 13, two days before Sukari’s leave, she told

Torigian she needed to leave early to buy luggage for her trip. Sukari’s departure led Torigian to

believe that the 13th was Sukari’s scheduled half-day, with her vacation beginning on the 14th.

Even then, Sukari did not work a half-day; she left work at 8:00 a.m. to buy luggage for her trip,

and the building records show she did not return on the 13th or 14th.

       Sukari was scheduled to return to work on February 26. But she informed Torigian that

her flight home was overbooked, meaning she would not be returning to work until the 27th.

Sukari, however, acknowledges that she did not pursue a flight on a different airline, and that she

received a free flight voucher for being rescheduled. And yet when she landed the on the 27th,

she texted Torigian that she was too “exhausted and bloated” to work. It was not until the 28th

that Sukari returned to the office.

       Torigian had seen enough. At his request, Snygg emailed him written summaries of both

Sukari’s attendance issues as well as recent attendance-related meetings they had with Sukari.

After reviewing that information, Torigian decided to terminate Sukari’s employment. Torigian

informed Sukari of his decision on March 1st.



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       That termination prompted this action.        In her complaint, Sukari alleged that her

termination was based upon her osteoarthritis, in violation of the Americans with Disabilities Act

and the Michigan Persons with Disabilities Civil Rights Act. She alleges that Akebono also

violated those statutes by failing to accommodate her disability, and that Akebono separately

violated the FMLA. The district court granted summary judgment to Akebono on all claims. On

appeal, Sukari challenges the district court’s findings that (1) Akebono did not violate the ADA

when it terminated Sukari, (2) Akebono did not fail to accommodate Sukari in violation of the

ADA, and (3) Akebono did not retaliate against Sukari for exercising her rights under the FMLA.

                                        II. ANALYSIS

       A grant of summary judgment, which we review de novo, is “proper when the moving

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

judgment as a matter of law.’” Demyanovich v. Canon Plating & Coatings, L.L.C., 747 F.3d 419,

433 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “A genuine dispute exists when there is

sufficient evidence on which the jury could reasonably find for the nonmoving party.” Id.

       Sukari’s Termination Did Not Violate The ADA. The ADA prohibits an employer from

discriminating against a qualified employee based upon the employee’s disability. Daugherty v.

Sajar Plastics, Inc., 544 F.3d 696, 702–03 (6th Cir. 2008). To establish a prima facie disability

discrimination claim based upon unlawful termination, Sukari must show: “1) [] she is disabled;

2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an

adverse employment decision; 4) [Akebono] knew or had reason to know of [Sukari’s] disability;

and 5) [Sukari’s] position remained open while [Akebono] sought other applicants or [Sukari] was

replaced.” Id. For Sukari’s disability to be actionable, it must have been the “but for” cause of




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her termination. Demyanovich, 747 F.3d at 433; Arthur v. Am. Showa, Inc., 625 F. App’x 704,

707 (6th Cir. 2015).

       One way for a plaintiff to establish an ADA-based discrimination claim is through the

McDonnell Douglas burden-shifting framework.          Under that framework, Sukari must first

establish a prima facie case of disability discrimination. Whitfield v. Tennessee, 639 F.3d 253, 259

(6th Cir. 2011). If she does, the burden shifts to Akebono to put forth a non-discriminatory reason

for terminating Sukari. Id. And if Akebono meets its burden as well, the ball bounces back into

Sukari’s court, who must then show that Akebono’s stated motives for her termination were

pretextual. Id. The district court found that Sukari’s claim failed at three independent junctures:

(1) she was neither replaced by a new employee nor did Akebono seek a replacement,

(2) Akebono’s reasons for terminating her were not pretextual, and (3) her disability was not the

“but for” cause of her termination. We can resolve Sukari’s claim on the first ground alone.

       For purposes of articulating a prima facie claim under the ADA, an “employee is replaced

only where ‘another employee is hired or reassigned to perform [her] duties.’”             Webb v.

ServiceMaster BSC LLC, 438 F. App’x 451, 454 (6th Cir. 2011) (quoting Grosjean v. First Energy

Corp., 349 F.3d 332, 336 (6th Cir. 2003)). Acknowledging that no new employee was hired to

replace her, Sukari instead contends that a co-worker was assigned to take her position. Where a

plaintiff’s roles and responsibilities are re-assigned or redistributed among current employees—as

opposed to reassigned completely to one other employee—the position is not considered

“replaced.” Id. (finding, in the context of an age discrimination claim, that “spreading the former

duties of a terminated employee among the remaining employees does not constitute replacement”

(quoting Lilley v. BTM Corp., 958 F.2d 746, 752 (6th Cir. 1992))). This describes Sukari’s

circumstances. Her duties were assumed by her former co-workers, one of whom also received an



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updated job title—from “HRIS Analyst III” to “Compensation & Benefits Analyst”—an indication

the employee did not fully replace Sukari, but instead subsumed some of her duties into his role.

The rest were distributed among Snygg and members of the Finance Department, or lost to

automation. We thus agree with the district court that Sukari’s duties are more properly classified

as “redistributed,” rather than characterizing her position as being “replaced.”

        Sukari also claims that Akebono’s stated reasons for terminating her are pretext, with the

actual reason being her disability. We need not examine pretext here because it is clear that Sukari

fails to establish a prima facie case of discrimination. See Whitfield, 639 F.3d at 259 (noting that

the plaintiff only has the burden to prove an employer’s motives were pretextual after the plaintiff

has made out a prima facie case and after the employer has offered a non-discriminatory rationale

for their action). And for the reasons just explained, Sukari fails to satisfy that condition

precedent—she does not make out a prima facie case, which dooms her ADA claim.

       Akebono Did Not Fail To Accommodate Sukari. Sukari next disputes the district court’s

rejection of her ADA-based failure to accommodate claim. To make out a prima facie case of a

failure to accommodate claim, Sukari must show: “(1) she [is] disabled . . . ; (2) she [is] otherwise

qualified for her position, with or without reasonable accommodation; (3) [Akebono] knew or had

reason to know about her disability; (4) she requested an accommodation; and (5) [Akebono] failed

to provide the necessary accommodation.” Brumley v. UPS, 909 F.3d 834, 839 (6th Cir. 2018).

       The district court rejected Sukari’s claim on two grounds. One, that Sukari failed to request

an accommodation. Sukari v. Akebono Brake Corp., Case No. 18-10987, 2019 WL 3456842, at

*6 (E.D. Mich. July 31, 2019). And two, even if Sukari had requested a work-from-home

accommodation, she could not show she was “otherwise qualified” for the position. Id. In her

appellate briefing, Sukari does not challenge the district court’s finding that she was not “otherwise



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qualified.”    Having failed to challenge that conclusion in this Court, Sukari’s failure to

accommodate claim fails. See Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir.

2018).

         Sukari Was Not Terminated For Exercising Her Rights Under The FMLA. Lastly, Sukari

argues her employment was terminated because she obtained and used FMLA coverage. To

establish a prima facie case for an FMLA retaliation claim, Sukari must show: “(1) [she] was

engaged in an activity protected by the FMLA; (2) [Akebono] knew that she was exercising her

rights under the FMLA; (3) after learning of [Sukari]’s exercise of FMLA rights [Akebono] took

an employment action adverse to her; and (4) there was a causal connection between the protected

FMLA activity and the adverse employment action.” Donald v. Sybra, Inc., 667 F.3d 757, 761

(6th Cir. 2012) (quoting Killian v. Yorozu Auto. Tenn., Inc. 454 F.3d 549, 556 (6th Cir. 2006)).

If she does so, the burden shifts to Akebono to provide a legitimate, non-retaliatory reason for her

termination, before the burden shifts back to Sukari to demonstrate pretext. See id. at 761–62.

         There seems to be little dispute between the parties that Sukari has established the first two

elements of a prima facie claim. On January 15, she requested information on FMLA. On January

30, she was approved for intermittent FMLA leave. And on March 1, she was fired.

         Sukari contends she has also met the third—a causal connection between her request for

FMLA coverage and her termination—due to the temporal proximity between those two events.

Here, a causal connection analysis raises complicated issues related to the temporal proximity

between Sukari’s request for and use of FMLA leave and her termination, as well as the role of

intervening events between her protected activity and her termination. See Kuhn v. Washtenaw

County, 709 F.3d 612, 628 (6th Cir. 2013) (finding, in the Title VII context, that the plaintiff did

not show the casual connection required for a prima facie case partly because “‘an intervening



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legitimate reason’ to take an adverse employment action ‘dispels an inference of retaliation based

on temporal proximity’” (quoting Wasek v. Arrow Energy Servs., Inc., 682 F.3d 463, 472 (6th Cir.

2012)); Wasek, 682 F.3d at 471–72 (finding that the plaintiff could not meet the causation prong

of his prima facie Title VII sexual harassment retaliation case because “[a]ll of the available

evidence, including [plaintiff]’s own deposition, indicates that the ban was a result of [plaintiff]

leaving his work site” and “[plaintiff]’s decision to leave the worksite was an intervening event”);

cf. Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008) (explaining that temporal

proximity alone is sufficient to establish a prima facie case of retaliation when an employer

“immediately retaliates against an employee upon learning of his protected activity” meaning

“little other than protected activity could motivate the retaliation”). Here, Sukari’s recurring

attendance issues culminated in her unauthorized extension of her scheduled vacation, two days

on the front end, and two days on the back, all of which occurred after her request for FMLA

coverage.

       Nonetheless, we need not resolve Sukari’s claim definitively on prima facie case grounds.

For it is quite apparent that, even if she has met that burden, she falls far short of demonstrating

that Akebono’s reason for her termination—her attendance issues—was pretext for taking FMLA

leave. Sukari notes that she had not utilized all of her authorized vacation time when she was

terminated, but the issue is whether she took unauthorized (not authorized) leave. She argues that

other employees, most notably Snygg, were not counseled for similar attendance issues, but she

fails to account for Snygg’s position as her supervisor or to demonstrate that Snygg’s behavior

was similar. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).

Sukari suggests that Torigian did not rely on appropriate documentation in deciding to terminate

her, but any dispute over the veracity of the documentation on which Torigian relied does not



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create a fact dispute. And Sukari takes issue with the fact that she was not required to sign a letter

of intent prior to her termination, as she says the employee handbook required. But a reasonable

jury could not conclude that Akebono’s proffered reason was pretextual solely because Sukari did

not sign a letter of intent prior to her termination, given the efforts Torigian and Snygg made to

address Sukari’s attendance issues throughout her employment.

       Accordingly, Sukari’s FMLA retaliation claim also fails.

                                       III. CONCLUSION

       For these reasons, we AFFIRM the judgment of the district court.




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