                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0620n.06

                                         No. 14-2344


                          UNITED STATES COURT OF APPEALS                           FILED
                               FOR THE SIXTH CIRCUIT                          Sep 02, 2015
                                                                          DEBORAH S. HUNT, Clerk
CELIA SZASZ,

        Plaintiff-Appellant,
v.
                                                    ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
DOLGENCORP, LLC,
                                                    EASTERN DISTRICT OF MICHIGAN
        Defendant-Appellee.



BEFORE:          KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.*

        CLAY, Circuit Judge. Plaintiff Celia Szasz (“Plaintiff”) appeals the district court’s

order granting summary judgment in favor of Defendant Dolgencorp, LLC (“Defendant”), in this

action brought under the Michigan Persons with Disabilities Civil Rights Act (“DCRA”), Mich.

Comp. Laws §§ 37.1102, 37.1202(1)(b), (g).        Plaintiff asserts that her employment was

unlawfully terminated when Defendant failed to offer an accommodation for her disability. The

district court found otherwise. For the reasons stated herein, we AFFIRM the judgment of the

district court in full.

                                      BACKGROUND

                                     Procedural History

        Plaintiff initiated this lawsuit against Defendant on December 21, 2012, in the Eastern

District of Michigan, pursuant to the diversity jurisdiction statute, 28 U.S.C. § 1332. The

        *
          The Honorable Algenon L. Marbley, United States District Judge for the Southern
District of Ohio, sitting by designation.
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complaint alleged that Defendant discriminated against Plaintiff in violation of the DCRA by

choosing to terminate her employment rather than make a reasonable accommodation for the

disability she alleged, following a motor vehicle accident. The complaint sought upwards of

$75,000 in damages, based on her economic (i.e., lost wages) and non-economic harms,

including emotional distress, pain and suffering, and reputational harm. Plaintiff also sought

injunctive relief in the form of an order of reinstatement so that she could return to her former

position.

       Defendant answered by denying all liability and asserting a variety of affirmative

defenses.     Following discovery, Defendant moved for summary judgment.              Subsequent to

briefing and a hearing, the district court issued its opinion and order, granting summary judgment

in favor of Defendant. This timely appeal followed.

                                         Factual Background

       A.         Plaintiff’s Position at Dollar General

       Plaintiff began working for Defendant as a part-time store clerk in 2007 at the Dollar

General store located in Washington, Michigan.1 She subsequently transitioned to full-time

employment and was promoted to lead sales associate. In September of 2010, she was again

promoted, and became the assistant store manager.            Plaintiff, for all intents and purposes,

maintained ultimate responsibility on the ground for operating the store. Toward the end of her

employment, Plaintiff was the only employee in a management position at the Washington,

Michigan location.

       The store was “thinly staffed,” with a regular shift involving only two employees—a

clerk and a manager. Plaintiff described the manager position as requiring her to do whatever


       1
            Dollar General is a national retailor that offers discount merchandise.


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tasks had to be done to effectively operate the store at any particular moment. A typical day for

Plaintiff involved going to the bank in the morning, handling paperwork (e.g., merchandise

orders), opening the store, rearranging merchandise, insuring that the correct promotional posters

were in place, running the cash register, and helping customers. There were also days that

required more physical activity. For example, on “truck day,” which occurred once a week, new

merchandise would arrive and Plaintiff would help restock the shelves, after supervising the

unloading of the truck. Among the heavier items in the store that needed to be restocked were

large packages of dog food and cases of laundry detergent. Plaintiff explained in her deposition

testimony that although she could direct a store clerk to do all of the stocking while she worked

the register, restocking (like all other tasks) was mostly a team effort, and responsibilities

rotated.

       On weekdays, Plaintiff often opened the store by herself, and the part-time clerk would

not arrive until later in the day. But prior to Plaintiff being the only manager at her store, on

occasion, for brief periods there would be three employees in the store at the same time when the

manager and assistant manager met to share information about the store’s operation. Apart from

this overlap, there were never more than two employees in the store. Plaintiff, in addition to her

administrative duties, was responsible for the same tasks as any of the part-time store clerks. She

swept and mopped the floors, and she cleaned the bathroom. She also helped deconstruct and

rearrange shelving when the store’s layout invariably changed each summer. This task required

removing all merchandise from the shelves. In Plaintiff’s own words, she did “[w]hatever

needed to be done,” because the store did not have task-specific positions such as a cashier.

       Plaintiff remained in this hands-on management role until December 13, 2011, when she

was effectively terminated, inasmuch as she was not permitted to return to work following the



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exhaustion of the medical leave she had taken to recover from injuries sustained in an auto

accident.

       B.      The Accident and Disability Leave

       The accident occurred on the evening of July 28, 2011. Plaintiff was driving through an

intersection when her car was broadsided by a vehicle that had run a red light. She was taken to

the hospital and remained there until early in the morning the following day. She suffered pain

and swelling in her extremities as a result of the accident, and she became prone to experiencing

headaches, blurred vision, and dizziness. Despite these symptoms and her trip to the emergency

room, Defendant allegedly demanded that Plaintiff open the store the same morning she was

released from the hospital. She complied, but Defendant eventually sent another manager from a

different store to relieve Plaintiff from the remainder of her shift. Plaintiff returned to work the

next couple of days, until she was able to go on disability leave pursuant to the Family and

Medical Leave Act (“FMLA”), after she submitted to Defendant a letter from her doctor.

       Plaintiff remained on FMLA leave through October 2011 while she continued to recover

from her injuries and attend physical therapy. In early November 2011, when Plaintiff’s FMLA

leave was exhausted, she submitted another note from her doctor that stipulated her readiness for

work, contingent on certain restrictions. Plaintiff was not permitted to work for more than four

hours a day or to lift more than ten pounds.

       Defendant outsourced the administration of its leave programs to a third-party provider

named Matrix.       After receiving Plaintiff’s note, Matrix contacted Defendant’s leave

administrator, Rebecca Cherry. Ultimately, Cherry was responsible for determining whether an

accommodation could be made for an employee claiming a disability.                  To make this

determination, she would compare the affected individual’s written job description with the

limitations the individual was requesting that Defendant accommodate.
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       The job description for assistant store manager is broken down into six sections, each of

which contains a number of bullet points.         The sections are titled as follows: “General

Summary,” “Duties and Essential Job Functions,” “Knowledge and Skills,” “Work Experience

and/or Education,” “Competencies,” and “Working Conditions and Physical Requirements.”

(R. 20-2, Job Description). Key to this dispute is the following bullet point, listed under the

heading “Physical Requirements”: “[f]requent and proper lifting of up to 40 pounds; occasional

lifting of up to 55 pounds.” (Id.). Based on this requirement, Cherry informed Matrix that “[t]he

10 lb lifting restriction prohibits [Plaintiff] from performing the essential functions of her job.”

(R. 28-9, Matrix Log).      Matrix in turn informed Plaintiff that Defendant was unable to

accommodate her, but that she could take advantage of Defendant’s Medical Leave of Absence

program, which would afford her an additional six weeks of leave. She was also informed that if

her medical restrictions did not change prior to the exhaustion of this additional leave, she would

need to contact Defendant directly to seek further accommodations. Defendant’s Medical Leave

program explicitly stated that “[e]mployment may be terminated at the end of leave if the

employee does not return to work, unless otherwise required by law.” (R. 27-3, Medical Leave

Policy, PageID # 330).

       C.      Termination and Lawsuit

       The six-week period of Plaintiff’s additional leave passed without much change to her

condition. She submitted a new authorization from her doctor indicating that she could possibly

work eight hours a day, but that the ten-pound lifting restriction was still in place. Matrix

indicated that Plaintiff needed to call Cherry because she had exhausted her leave and the same

restriction which could not previously be accommodated was still in place. There is no record of

Plaintiff contacting Cherry or any of Defendant’s agents after her leave expired, and Plaintiff

testified that she does not recall whether she engaged in any conversations with Defendant after
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Defendant initially told her that the ten-pound lifting restriction could not be accommodated.

Plaintiff was also unaware of the date that her employment was officially terminated. She

simply found a different job and moved on, until seven months later when, on October 15, 2012,

she sent a letter to Defendant stating her intention to bring a claim under the Americans with

Disabilities Act (“ADA”).2

       When no resolution was reached, Plaintiff filed her lawsuit. In addition to the facts

discussed above, Defendant submitted a declaration in support of its motion for summary

judgment, which Plaintiff had signed upon the commencement of her employment.                  This

declaration stipulated that Plaintiff was capable of performing the “essential job function” of

“[f]requent and proper lifting of up to 40 pounds[, and] occasional lifting of up to 55 pounds,”

“with or without a reasonable accommodation.”            (R. 24-3, Phys. Reqs., PageID # 178).

Defendant also submitted the sworn declaration of a Dollar General district manager, confirming

that the responsibilities of the assistant store manager position were, in practice, the same as

described in the written job description. The manager stated:

       Assistant Store Managers assigned to each store work a full-time schedule.
       Assistant Store Managers must also be able to lift more that ten pounds as part of
       their job. Examples of the types of merchandise that has to be lifted that weighs
       more than ten pounds includes dog food, boxes of laundry detergent, cases of
       motor oil, cases of water, cases of bleach, and cases of sugar. The lifting of these
       products can take place as part of the stocking process, checking customers out at
       the register or simply lifting the product to assist a customer.

(R. 27-8, Unger Decl., PageID # 446).

       During the litigation, the district court granted Plaintiff’s discovery request, which

required Defendant to survey all of its Michigan stores—over 300 of them—to discover

(1) what, if any, accommodations had been offered to assistant store managers in the past three
       2
           She never asserted this claim. Her complaint only refers to and alleges violations of the
DCRA.


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years, and (2) whether or not any assistant store managers in the State worked less than full time.

There was no record of any accommodations and all assistant store managers worked full-time

schedules. The district court thereafter granted Defendant’s motion for summary judgment,

finding that the DCRA does not require employers to recreate jobs, transfer employees to new

jobs, or to engage in a back and forth negotiation in attempt to find a reasonable accommodation.

This timely appeal followed.

                                         DISCUSSION

                                      Standard of Review

       A district court’s resolution of a motion for summary judgment is reviewed de novo.

Combs v. Int’l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004). We may only grant summary

judgment when “viewed in the light . . . most favorable to the nonmovant, there is either

complete absence of proof on the issues or no controverted issues of fact upon which reasonable

persons could differ.” Spengler v. Worthington Cylinders, 615 F.3d 481, 488–89 (6th Cir. 2010)

(internal quotation marks omitted). We may consider “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits” when ruling on a summary

judgment motion. Fed. R. Civ. P. 56. All reasonable inferences shall be afforded to facts in

favor of the nonmoving party. Combs, 354 F.3d at 576–77.

                                            Analysis

       The DCRA prohibits Michigan employers from “[d]ischarg[ing] or otherwise

discriminat[ing] against an individual with respect to compensation or the terms, conditions or

privileges of employment, because of a disability or genetic information that is unrelated to the

individual’s ability to perform the duties of a particular job or position.” Mich. Comp. Laws §

37.1202(1)(b). It also prohibits employers from “[d]ischarg[ing] or tak[ing] other discriminatory

action against an individual when adaptive devices or aids may be utilized thereby enabling that

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individual to perform the specific requirements of the job.” § 37.1202(1)(g). Furthermore,

employers must accommodate a disabled employee unless making the requested accommodation

“would impose an undue hardship.” § 37.1102(2).

       An employer is liable under the DCRA only if the plaintiff can prove (1) that he or she

qualifies as being disabled, (2) that the disability is unrelated to the performance of core job

duties, and (3) that the he or she was discriminated against based on the disability. Chmielewski

v. Xermac, Inc., 580 N.W.2d 817, 821 (Mich. 1998). Only the second element is at issue.

       Plaintiff contends that despite the written job description and the sworn declaration of her

employer, lifting more than ten pounds and working more than four hours per shift were not

essential job functions. Under the DCRA, however, the employer’s judgment with respect to

what constitutes an “essential function” of an employee’s job is entitled to “substantial

deference.” Peden v. City of Detroit, 680 N.W.2d 857, 871 (Mich. 2004). This deference

requires courts to presume that the employer’s judgment is reasonable and, unless rebutted by the

plaintiff, means that the plaintiff’s claim cannot succeed unless the plaintiff proves that “he can,

with or without accommodation, perform those duties.” Id. at 871–72.

       Plaintiff simply cannot overcome this presumption on the record before this court

because she has not proffered sufficient evidence that lifting ten pounds was not an essential job

function or that Defendant could have reasonably accommodated her restrictions without

hardship. Her own testimony demonstrated that working at the Dollar General store was an all-

hands-on-deck effort: she often restocked shelves and regularly lifted items that weighted greater

than ten pounds. She also admitted that as an assistant store manager she was a full-time

employee and held substantial responsibility with respect to supervision of the store, including

the responsibility to open and close the store on a set number of days each week. Given that



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Defendant’s business model relies on their stores being “thinly staffed,” Plaintiff admitted that

there were often times where she worked alone. In those circumstances, Plaintiff’s lifting

restriction would necessarily limit her ability to assist all customers, who might request

assistance with items weighing more than ten pounds. Plaintiff admitted that various items in the

store weighed over ten pounds. Therefore, Defendant’s contention that lifting more than ten

pounds was an essential job function is not unreasonable.

       Plaintiff presses this Court to refer to the factors associated with the ADA for

determining whether a job function is essential, and she cites to a few cases that analyze this

inquiry under the ADA framework. These cases are inapposite. The Michigan Supreme Court

in Penden v. City of Detroit considered claims brought both under the ADA and the DCRA, yet

the court eschewed any reliance on the ADA factors when it dispensed with the claim brought

under Michigan’s disability law. See 680 N.W.2d at 869 (cautioning courts “against simply

assuming that the [DCRA] analysis will invariably parallel that of the ADA” and noting that

“[u]nlike the ADA, the [DCRA] does not provide specific guidance regarding what the duties of

a particular job are[;] . . . the task falls upon the judiciary to determine how to resolve relevant

disputes”).

       Even if it were appropriate for us to seek guidance from the federal regulations, with

respect to defining essential job functions, the ADA factors do not weigh in Plaintiff’s favor.

Under those factors, a particular job function may be deemed essential “because of the limited

number of employees available among whom the performance of that job function can be

distributed.” 29 C.F.R. § 1630.2(n).      Other factors to consider include: “[t]he employer’s

judgment as to which functions are essential,” “[w]ritten job descriptions,” “the amount of time

spent on the job performing the function,” “the consequences of not requiring the incumbent to



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perform the function,” and the actual experience of past incumbents, or the present “experience

of incumbents in similar jobs.” Id. Most of these factors weigh strongly in favor of finding that

the lifting requirement was an essential function of Plaintiff’s job. Defendant’s district manager

asserted that routinely lifting merchandise weighing more than ten pounds is an essential

function, the written job description noted as a requirement the ability to frequently lift forty

pounds, and Plaintiff testified that she would help regularly with stocking and rearranging

merchandise that may weigh over ten pounds.

       Under Michigan law, “[a]n employer . . . has no duty to accommodate the plaintiff by

recreating the position, adjusting or modifying job duties otherwise required by the job

description, or placing the plaintiff in another position.” Kerns v. Dura Mech. Components, Inc.,

618 N.W.2d 56, 64 (Mich. Ct. App. 2000). Job restructuring, which is what Plaintiff explicitly

requests in her briefing, see Appellant Br. at 13, applies only to “minor or infrequent duties

relating to the particular job held by the person with a disability.”        Mich. Comp. Laws

§ 37.1210(15). Defendant does not offer cashier positions and, as discussed above, the ability to

help move merchandise around the store is an essential function for each employee working in a

Dollar General store. Defendant’s business model envisions that the few employees working at

any given time within a store are interchangeable with respect to stocking shelves, assisting

customers, running the cash register, and rearranging merchandise.                Therefore, an

accommodation allowing plaintiff to forego all heavy lifting constitutes an undue hardship on the

company. See Plumb v. Abbott Labs., 60 F. Supp. 2d 642, 654 (E.D. Mich. 1999) (finding that

allowing an employee to outsource her delivery responsibilities to accommodate a ten-pound

lifting restriction would create an undue hardship on the company because personal delivery was

intended to improve customer relations).



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                                           No. 14-2344


       Plaintiff’s request that she be permitted to work in four-hour shifts is likewise

unreasonable. She herself testified that the assistant store manager position likely was a full-time

job due to the responsibilities it entailed. The fact that Plaintiff remained able to perform a

number of her other essential job functions is irrelevant in this instance, because she did not

satisfy her “initial burden of proposing an accommodation and showing that that accommodation

is objectively reasonable.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004)

(internal quotation marks omitted).

                                         CONCLUSION

       For the reasons stated in this opinion, we AFFIRM the district court judgment granting

summary judgment in favor of the Defendant in this action brought under the DCRA.




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