                             NOT RECOMMENDED FOR PUBLICATION
                                     File Name: 17a0187n.06

                                                    No. 16-3141

                                UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                                                                         FILED
BRIAN GREEN,                                                      )                  Mar 27, 2017
                                                                  )              DEBORAH S. HUNT, Clerk
           Plaintiff-Appellant,                                   )
                                                                  )      ON APPEAL FROM THE
                    v.                                            )      UNITED STATES DISTRICT
                                                                  )      COURT FOR THE SOUTHERN
BAKEMARK USA, LLC,                                                )      DISTRICT OF OHIO
                                                                  )
           Defendant-Appellee.                                    )
                                                                  )



BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

           JULIA SMITH GIBBONS, Circuit Judge.                        Brian Green began working as an

operations manager at BakeMark USA, LLC in October 2010. In September 2011, Green had

surgery after being diagnosed with thyroid cancer. Following his surgery, Green made several

failed attempts to resume full-time work at BakeMark. Green’s employment was ultimately

terminated in September 2012 after he informed BakeMark that his disability required an

indefinite leave of absence. Green sued BakeMark, its parent company, and several of its

employees1 for failure to accommodate and constructive discriminatory discharge under the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district court granted

summary judgment for defendants on all claims. We affirm.




1
    BakeMark is the only remaining defendant in this case.
No. 16-3141, Brian Green v. BakeMark USA, LLC


                                                 I.

                                                 A.

         Brian Green began working for BakeMark as an operations manager at its Fairfield,

Ohio, facility on October 25, 2010. BakeMark provides food products and services throughout

the United States, and the Fairfield facility is one of its regional distribution centers.    As

operations manager, Green was responsible for directing and coordinating all warehouse activity,

which included: closely interacting with department associates, overseeing transportation

operations and personnel to ensure timely deliveries, reviewing weekly reports, maintaining the

sanitation and physical condition of the warehouse, and performing other general supervisory

tasks.

         In early September 2011, Green requested a leave of absence to undergo surgery related

to thyroid cancer. This leave was scheduled to last until October 11 but was ultimately extended

until October 17 at the request of Green’s doctor. Green returned to work without restrictions on

October 17.

         On November 25, 2011, Green once again requested leave due to thyroid complications.

BakeMark approved Green’s request, and he was placed on leave until January 2, 2012. Green,

however, was unable to return to work on January 2. Instead, he submitted a doctor’s note on

January 6 stating that, due to “medical issues,” he would need an additional month of leave.

BakeMark granted Green’s request for additional leave through February 19, 2012, but notified

Green it would need additional information from Green’s doctors prior to granting leave beyond

this date. From January 6 to February 19, Green’s position remained open and he continued to

receive disability benefits under BakeMark’s short-term disability plan. BakeMark also flew in

other managers, at least intermittently, to cover Green’s responsibilities.



                                                  2
No. 16-3141, Brian Green v. BakeMark USA, LLC


        On February 17, 2012, Green submitted a doctor’s note stating that he could immediately

return to work for four hours a day, five days a week, and that this restriction would be in place

for thirty days. After meeting to discuss and consider Green’s return, BakeMark extended

Green’s job-protected leave for thirty days, instead of allowing him to return on a part-time

basis. Green continued to receive disability payments from BakeMark under its short-term

disability plan during this period.

        On March 16, 2012, Green submitted a doctor’s note stating that he could return to work

with an eight-hour-a-day, five-day-a-week restriction, although no durational limit was given for

this restriction.2 BakeMark replied to Green on March 19, requesting clarification as to whether

Green did, in fact, have restrictions and, if so, whether the restrictions were permanent or only

temporary.3 On March 20, BakeMark sent Green a follow-up email agreeing to accommodate

his eight-hour-a-day work restriction until Green was able to obtain clarification from his doctor

or until March 30, whichever came first.

        Although instructed to do so by BakeMark, Green did not return to work between March

20 and 23. Instead, on March 23, Green emailed BakeMark a doctor’s note clarifying that

Green’s eight-hour-a-day restriction was in effect only until March 30, after which Green could

return to work without restriction.          Green returned to work on March 24, and BakeMark

accommodated Green’s eight-hour-a-day work restriction until March 30.

        Green fulfilled his operations-manager duties without incident until May 2, 2012. On

May 2, after working twenty-four hours straight, Green arrived home and collapsed. Green did

not report for work on May 3. On May 4, Green submitted a doctor’s note stating that he could


2
  The doctor’s note limited Green to an eight-hour-a-day schedule but also stated that Green was released with “no
restrictions.” CA6 R. 18, Sealed App., at 41.
3
  Green admitted in his deposition that a permanent eight-hour-a-day, five-day-a-week restriction would render him
unqualified for the operations-manager position.

                                                        3
No. 16-3141, Brian Green v. BakeMark USA, LLC


return to work on May 7 with an eight-hour-a-day restriction. BakeMark responded that Green

could return to work on May 7 but that it would need to discuss the restrictions with him at that

time. Green did not return to work on May 7 but instead submitted a doctor’s note on May 8

stating, “Brian will need to be off work until I receive and review a copy of expectations on

hours and days per week that he is expected to work. At that time I can decide on what would be

best for my patient’s current health issues.” DE 73-1, Ex. 140, at 2967. At this point, BakeMark

placed Green on job-protected leave.

       On May 30, BakeMark informed Green’s doctor that Green could expect to work “10 –

12 hours a day/50 – 60 hours a week” upon his return from leave. CA6 R. 18, Sealed App., at

49. On June 24, the doctor responded that Green could return to work with certain restrictions: a

four-hour-a-day restriction for fourteen days, and an eight-hour-a-day restriction for six months

thereafter. BakeMark asked Green to participate in a telephonic conference on July 3 to discuss

these restrictions. Green declined via email, stating that the proposed restrictions were clear and

that he would prefer any future communications take place via written communications.

BakeMark promptly responded by email,

       It is very important that we schedule a time for a call to discuss your doctor’s note
       and additional information that the Company needs from you in order for
       BakeMark to evaluate potential reasonable accommodations. The best way to
       facilitate this interaction is through verbal conversation. Please remember that
       you are an active BakeMark employee, and as is the case with any successful
       employment situation, it is important that you be able to communicate verbally
       with your colleagues and HR team.

DE 72-1, Ex. 145, Page ID 2785. Green demurred, reiterating his earlier position that his

proposed accommodations were clear and restating his preference for written communications in

the future. Around this time, Green also applied for, and received, financial benefits under




                                                4
No. 16-3141, Brian Green v. BakeMark USA, LLC


BakeMark’s long-term disability plan, based on his representations that he was medically unable

to work as of May 4, 2012.

       After several more unsuccessful attempts to schedule a meeting to discuss Green’s

proposed restrictions, the parties finally agreed to participate in a private mediation in September

2012. In mediation, Green informed BakeMark that he was completely unable to work and did

not know if, or when, he would be able to return. Green also provided BakeMark with two

letters from health-care providers confirming his inability to return to work in any capacity and

stating that he had been suffering from two severe psychological disorders—posttraumatic stress

disorder and major depressive disorder—since May 2, 2012. On September 25, BakeMark

notified Green that it was unable to accommodate an indefinite leave of absence and terminated

his employment.

       In October 2012, Green applied for disability benefits (SSDI benefits) with the Social

Security Administration (SSA). Based on the representations made in Green’s application, the

SSA found that Green became disabled “under [its] rules on May 2, 2012,” and it awarded him

benefits. DE 62-32, Ex. AS, Page ID 1561–62. This is consistent with Green’s deposition

testimony that he was unable to work in any capacity as of May 2, 2012.

                                                B.

       On October 16, 2013, Green and his wife sued BakeMark, its parent company CSM

WorldWide, and various employees of BakeMark in the Common Pleas Court of Butler County,

Ohio. The defendants timely removed the case to the United States District Court for the

Southern District of Ohio. On December 11, 2013, the Greens voluntarily dismissed all of their

claims against CSM and some of their claims against the remaining defendants. On April 22,

2015, Mrs. Green dropped out of the lawsuit altogether. On January 20, 2016, the district court



                                                 5
No. 16-3141, Brian Green v. BakeMark USA, LLC


granted summary judgment for the remaining defendants on Green’s remaining claims. The

district court found that BakeMark had not, as Green alleged, failed to accommodate him in

February 2012, March 2012, or the summer of 2012. The district court further concluded that,

because BakeMark had not violated the ADA at any of these various junctures, it could not be

liable for constructive-discriminatory discharge. Green filed this timely appeal.

                                                II.

       We review a district court’s grant of summary judgment de novo. Yazdian v. ConMed

Endoscopic Techs., Inc., 793 F.3d 634, 644 (6th Cir. 2015) (citing Griffin v. Finkbeiner,

689 F.3d 584, 592 (6th Cir. 2012)). The movant is entitled to summary judgment as a matter of

law where the pleadings, affidavits, and other discoverable evidence show no genuine issue of

material fact. Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 557 (6th Cir. 2009) (citing

Fed. R. Civ. P. 56(c)). Only material factual disputes, which are determined by the substantive

law governing the issue, will be sufficient to withstand a motion for summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We construe all facts and inferences

in favor of the non-movant to determine if there exists “sufficient evidence for a trier of fact to

find for that party.” Wheat v. Fifth Third Bank, 785 F.3d 230, 236 (6th Cir. 2015).

                                               III.

       Under the ADA, an employer is prohibited from discriminating “against a qualified

individual on the basis of [a] disability.” 42 U.S.C. § 12112(a). An employer discriminates

within the meaning of § 12112(a) when it fails to make “reasonable accommodations to the

known physical or mental limitations” of an otherwise qualified employee, unless the employer

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

its business. Id. § 12112(b)(5)(A). To establish a prima facie case of failure to accommodate



                                                6
No. 16-3141, Brian Green v. BakeMark USA, LLC


under § 12112(b)(5)(A), an employee must show that: (1) he is disabled within the meaning of

the ADA; (2) he is otherwise qualified for the position, such that he can perform the essential

functions of the job with or without a reasonable accommodation; (3) the employer knew or had

reason to know of his disability; (4) the employee requested an accommodation; and (5) the

employer failed to provide a reasonable accommodation thereafter. Johnson v. Cleveland City

Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011); see Kleiber v. Honda of Am. Mfg., Inc.,

485 F.3d 862, 869 (6th Cir. 2007). Once an employee establishes a prima facie case, “the burden

shifts to the employer to demonstrate that any particular accommodation would impose an undue

hardship on the employer.” Johnson, 443 F. App’x at 983. Green alleges that BakeMark

violated the ADA4 by failing to accommodate his disability on three separate occasions: in

February 2012; in March 2012; and in the summer of 2012.

                                                      A.

        Green cannot succeed on his February 2012 failure-to-accommodate claim because he

has not shown that he was “qualified” for the operations-manager position within the meaning of

the ADA. A “qualified individual” under the ADA is one who, “with or without reasonable

accommodation, can perform the essential functions of the employment position [he] holds or

desires.” 42 U.S.C. § 12111(8); see also E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761 (6th

Cir. 2015).     A “reasonable accommodation” may include “job restructuring, part-time or

modified work schedules, [or] reassignment to a vacant position,” 42 U.S.C. § 12111(9)(B), but

“it does not include removing an ‘essential function’ from the position, for that is per se

unreasonable.” Ford Motor, 782 F.3d at 761 (citation omitted). Therefore, while a part-time


4
  To the extent Green is also appealing his state-law disability claims, because Ohio’s handicap-discrimination
statute was modeled after the ADA, “[t]he standards for demonstrating a prima facie case under either [Ohio Rev.
Code § 4112.02(A) or the ADA] are virtually identical.” See House v. Kirtland Capital Partners, 814 N.E.2d 65,
75–76 (Ohio Ct. App. 2004); see also Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004).

                                                       7
No. 16-3141, Brian Green v. BakeMark USA, LLC


work schedule may be a reasonable accommodation in some cases, 42 U.S.C. § 12111(9)(B), it is

unreasonable in situations where the essential functions of the job require full-time attendance.

See White v. Standard Ins. Co., 529 F. App’x 547, 549–50 (6th Cir. 2013). A job function is

“essential” if it is “‘fundamental,’ (as opposed to ‘marginal’),” such that the position is

“fundamentally altered” if the function is removed. See Ford Motor, 782 F.3d at 762 (citing 29

C.F.R. § 1630(n)(1)). ADA regulations help illuminate what job functions are essential by

providing several non-exclusive factors for consideration:

       (i) The employer’s judgment as to which functions are essential;
       (ii) Written job descriptions . . .;
       (iii) The amount of time spent on the job performing the function;
       (iv) The consequences of not requiring the incumbent to perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3).

       On February 17, 2012, Green submitted a doctor’s note stating that he could immediately

return to work four hours a day, five days a week, and that this restriction would be in place for

thirty days. After considering this request, BakeMark instead extended Green’s job-protected

leave for an additional thirty days. The basis for BakeMark’s decision was its belief that Green

would be unable to perform the essential functions of his position working only four hours a day,

five days a week. Whether Green was “qualified” under the ADA in February 2012 turns on

whether BakeMark was correct in concluding that Green could not perform the essential

functions of his operations-manager position working four hours a day, such that a part-time

accommodation was unreasonable. On this record, we conclude that it was.

       First, several members of BakeMark management testified that the operations-manager

position requires, at a minimum, fifty hours per week, much more than the twenty hours a week



                                                8
No. 16-3141, Brian Green v. BakeMark USA, LLC


in Green’s accommodation request.5 Second, Green’s own experience working long hours as an

operations manager belies any claim that he could perform the essential functions of the position

working four hours a day, five days a week. In fact, Green testified that he would be unqualified

for the position with even an eight-hour-a-day, five-day-a-week restriction.6 Third, the written

job description for operations manager emphasizes the position’s full-time nature by stressing the

“supervisory responsibilities” inherent in the position, including “closely interacting with

department associates.” CA6 R. 18, Sealed App., at 4–6. It is difficult to fathom how Green

could adequately fulfill his supervisory role if he were there to supervise and interact with the

associates only part-time. See Ford Motor, 782 F.3d at 761–62 (noting that “regularly attending

work on-site is essential to most jobs, . . . especially those involving teamwork and a high level

of interaction”). Accordingly, a twenty-hour-per-week part-time work schedule would not have

allowed Green to perform the essential functions of the operations-manager position. Green’s

proposed accommodation was therefore unreasonable, and BakeMark was not required to

provide it.

        Green’s arguments to the contrary are unavailing. Green claims that because BakeMark

failed to fill his position while he was on leave—instead opting to fly in replacement managers

on an infrequent basis—he would have been performing more duties in four hours than were

being performed in his absence. But the record shows that BakeMark frequently flew in other

managers to cover for Green during most, if not all, of his absence.




5
  Green relied on General Manager Steve Weltzin’s deposition testimony that working more than eight hours a day,
five days a week is not an essential function of the operations-manager position. But Weltzin clarified later in his
deposition that the position is not a forty-hour-a-week position and that operations managers were expected to work,
on average, ten-to-twelve hour days.
6
  We do not mean to imply that fact questions would not arise at some point regarding whether BakeMark had an
obligation to accommodate an eight-hour-a-day schedule for some period of time, which, in fact, it did here.

                                                         9
No. 16-3141, Brian Green v. BakeMark USA, LLC


       Green also argues that if he cannot perform the essential functions of his position on a

part-time basis, it necessarily follows that no employee could ever perform the essential

functions of the employee’s position on a part-time basis, thus removing this as a potential

accommodation under the ADA in violation of § 12111(9)(B). This is misguided. A part-time

or flexible schedule may be a reasonable accommodation under the ADA in some cases. See

Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1146–47 (10th Cir. 2011). In Green’s

case, however, the four-hour part-time schedule was not a reasonable accommodation because

the essential functions of the operations-manager position could not be performed within those

restricted hours and Green proposed no other reasonable option for getting his work done outside

of those hours. See White, 529 F. App’x at 549; see also Lamb v. Qualex, Inc., 33 F. App’x 49,

57 (4th Cir. 2002) (“[A] plaintiff who can work only on a part-time basis cannot be a ‘qualified

individual with a disability’ if the ability to work full-time is essential to his job.”). Green’s

position required him to supervise and interact closely with department associates for, at a

minimum, fifty hours a week. This function could not be performed while working a four-hour

part-time day. And having established that the operations-manager position required full-time

attendance, the ADA did not require BakeMark to create a special, part-time position in order to

accommodate Green. Arthur v. Am. Showa, Inc., 625 F. App’x 704, 709 (6th Cir. 2015); see also

Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998). Nor was BakeMark obliged to incur the

expense of flying in other operations managers to work part of the day.

       At best, Green’s proposed accommodation would have allowed him to perform only

some functions of his position, some of the time. The ADA requires more. Because Green could

not perform the essential functions of his position with any reasonable accommodation in




                                               10
No. 16-3141, Brian Green v. BakeMark USA, LLC


February 2012, he was not a “qualified individual” under the ADA. Summary judgment was

therefore proper on this claim.7

                                                    B.

        Green’s March 2012 failure-to-accommodate claim also falls short because Green

received the only accommodation he requested. To prevail on a failure-to-accommodate claim

under the ADA, an employee must show that he actually requested an accommodation. Johnson,

443 F. App’x at 982–83. The initial burden of requesting an accommodation rests with the

employee. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th Cir. 1998). “The

employer is not required to speculate as to the extent of . . . the employee’s need or desire for an

accommodation.” Id. at 1046–47.

        On March 16, 2012, Green sent BakeMark an email stating that he could return to work

on March 19 without restrictions. The doctor’s note attached to the email, however, stated that

Green could work eight hours a day, five days a week, and did not state a time limit for this

restriction. In response, BakeMark emailed Green to have his doctor clarify whether Green

actually had restrictions, and, if so, whether the restrictions were permanent or temporary. On

March 20, BakeMark sent Green a follow-up email agreeing to accommodate Green’s eight-

hour-a-day schedule, as Green’s doctor requested, until Green was able to obtain clarification

from his doctor or until March 30, whichever came first. BakeMark then instructed Green to

return to work on March 21.

        Green did not return to work on March 21. Instead, on March 23, Green provided

BakeMark a doctor’s note clarifying that Green could work eight hours a day, five days a week

until March 30, after which he could work “without restriction.” CA6 R. 18, Sealed App., at 47.

7
  Because Green could not perform the essential functions of the operations-manager position with or without
reasonable accommodation in February 2012, we need not address whether BakeMark’s grant of leave was a
reasonable alternative accommodation.

                                                    11
No. 16-3141, Brian Green v. BakeMark USA, LLC


BakeMark allowed Green to work with the eight-hour-a-day restriction until March 30, after

which Green resumed his normal work schedule.

       Green claims that BakeMark failed to accommodate him when it did not allow him to

work with the eight-hour-a-day restriction beyond March 30. But Green did not request such an

accommodation. He requested only that he be allowed to work with this restriction until March

30, after which, as his doctor stated, he could resume a normal work schedule. BakeMark

provided Green with this accommodation.

       Green nevertheless argues that he limited his accommodation request in response to

BakeMark’s March 20 email, in which BakeMark stated that it would provide Green with an

eight-hour-a-day restriction only until March 30. Although this may be true, if Green believed

that an hour restriction beyond March 30 was necessary to accommodate his disability, it was his

responsibility to make that request. See Gantt, 143 F.3d at 1046. BakeMark was not required to

speculate as to Green’s need for an additional accommodation beyond what Green specifically

requested in his March 23 email. Id. at 1046–47. Accordingly, because BakeMark provided

Green with the only accommodation he requested in March 2012, we affirm the district court’s

grant of summary judgment to BakeMark on this claim.

                                              C.

       Finally, Green’s failure-to-accommodate claim for the summer of 2012 fails because, as

was the case with his February 2012 claim, the record as a whole does not create a genuine

factual dispute as to whether Green was “qualified” for the operations-manager position in the

summer of 2012. He was not. Although the June 24, 2012 doctor’s note indicated that Green

could return to work with certain hour restrictions—four hours a day for a period of fourteen

days, and eight hours a day for a period of six months—this assertion is controverted by the



                                              12
No. 16-3141, Brian Green v. BakeMark USA, LLC


overwhelming evidence in the record that Green was unable to work at all in the summer of

2012, including: (1) Green’s deposition testimony that he was unable to work “in any capacity”

after May 2, 2012; (2) the SSA’s finding that Green was disabled under its rules as of May 2,

2012;8 (3) Green’s doctor’s statement to Aetna, BakeMark’s short-term disability administrator,

that Green had been disabled from work since May 4, 2012; (4) Green’s interrogatory responses

that he has neither sought nor performed any work since May 1, 2012; and (5) statements

submitted by Green’s doctors during mediation that Green had suffered from PTSD and major

depressive disorder since May 2, 2012.

        On this record, no reasonable juror could find that Green was able to perform the

essential functions of the operations-manager position, with or without reasonable

accommodation, in the summer of 2012. See Cleveland, 526 U.S. at 807; see also Anderson, 477

U.S. at 252. Green was therefore not a “qualified individual” under the ADA, and, as such,

summary judgment was proper on this claim.

                                                        IV.

        Green also claims that BakeMark’s repeated failure to accommodate him caused him to

develop severe psychological disorders, which ultimately rendered him unable to work and

provided the basis for BakeMark to terminate him in September 2012. BakeMark’s actions,

Green claims, amount to a constructive-discriminatory discharge in violation of the ADA. We

agree with the district court that Green cannot show constructive-discriminatory discharge




8
  We recognize that the SSA’s determination that Green was disabled does not bar his ADA claim. See Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 797–98 (1999). Green, however, must adequately explain why his SSDI
claim and award are consistent with his current ADA claim that he was able to perform the essential functions of his
operations-manager position with or without reasonable accommodation in the summer of 2012. Id. at 807. He has
not done so. His claim that he was able to work with an eight-hour-a-day accommodation during this period is
inconsistent with his SSDI claim under any scenario.

                                                        13
No. 16-3141, Brian Green v. BakeMark USA, LLC


because he has not established that BakeMark violated the ADA at any point after he became

disabled.

       To establish a prima facie case of discriminatory discharge under the ADA without direct

evidence of discrimination, Green must show that: (1) he was disabled; (2) he was otherwise

qualified to perform the essential functions of his position, with or without reasonable

accommodation; (3) he suffered an adverse employment action; (4) BakeMark knew or had

reason to know of his disability; and (5) the position remained open or a non-disabled person

replaced him. Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 321 (6th Cir. 2012)

(citing Brenneman v. MedCentral Health Sys., 366 F.3d 412, 417 (6th Cir. 2004)). Once a

plaintiff makes out a prima facie case, the “burden shifts to the defendant to articulate a non-

discriminatory explanation for the employment action.” Whitfield v. Tennessee, 639 F.3d 253,

259 (6th Cir. 2011).

       In this circuit, constructive discharge qualifies as an adverse employment action under

the ADA. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1107 (6th Cir. 2008).

Whether an employee can prevail on a constructive-discharge claim “depends upon the facts of

each case and requires an inquiry into the intent of the employer and the reasonably foreseeable

impact of the employer’s conduct upon the employee.” Id. (citation omitted). Specifically, it

requires a showing that “working conditions would have been so difficult or unpleasant that a

reasonable person in the employee’s shoes would have felt compelled to resign.” Id. (citation

omitted). Importantly, the employer must have “deliberately create[d the] intolerable working

conditions, as perceived by a reasonable person, with the intention of forcing the employee to

quit.” Moore v. Kuka Welding Sys., 171 F.3d 1073, 1080 (6th Cir. 1999) (emphasis added). In

the failure-to-accommodate context, “a complete failure to accommodate, in the face of repeated



                                              14
No. 16-3141, Brian Green v. BakeMark USA, LLC


requests, might suffice as evidence to show the deliberateness necessary for constructive

discharge.”9 Talley, 542 F.3d at 1109 (quoting Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir.

1993)).

           BakeMark clearly had the right to terminate Green’s employment in September 2012

when it was obvious he could not return to work in any capacity for the foreseeable future. See

Harris v. Circuit Court, 21 F. App’x 431, 432 (6th Cir. 2001). The issue, then, is whether

BakeMark’s treatment of Green prior to this point was sufficiently egregious to support a

constructive-discharge claim under the ADA. It was not.

           Because Green has not shown that BakeMark failed to accommodate him under the ADA

in February 2012, March 2012, or the summer of 2012, he has not established the requisite

deliberateness necessary to sustain a constructive-discharge claim against BakeMark. Talley,

542 F.3d at 1109. Moreover, even if we had found that BakeMark failed to accommodate Green

at one of these various junctures, BakeMark’s actions are still not analogous to conduct we have

found sufficient to support a constructive-discharge claim. In Talley, for example, we concluded

that a reasonable juror could have found that the employer’s conduct was intended to make the

employee resign when it: (1) suddenly denied the employee an accommodation it had provided

for years; (2) refused to read a doctor’s note the employee provided; (3) failed to organize a

meeting to discuss the employee’s requested accommodations; and (4) failed to propose

alternative accommodations. Id. at 1109. BakeMark, conversely, did none of that. Instead, it


9
    The Talley court qualified this holding, stating:

           [O]ur holding today does not pave the way for an employee to assert a claim for constructive
           discharge every time an employer fails to accommodate her disability. But when an employee
           makes a repeated request for an accommodation and that request is both denied and no other
           reasonable alternative is offered, a jury may conclude that the employee's resignation was both
           intended and foreseeable.

542 F.3d at 1109.

                                                         15
No. 16-3141, Brian Green v. BakeMark USA, LLC


(1) openly communicated with Green’s doctor; (2) repeatedly attempted to arrange meetings with

Green to discuss potential accommodations; and (3) proposed alternative accommodations when

necessary. Green, accordingly, cannot show that BakeMark “deliberately create[d] intolerable

working conditions . . . with the intention of forcing” Green to quit, or, as relevant here, to go on

permanent medical leave. See Moore, 171 F.3d at 1080; see also Gleed v. AT&T Mobility Servs.,

LLC, 613 F. App’x 535, 540 (6th Cir. 2015) (“[T]he denial of an accommodation, by itself, is not

sufficient to prove that an employer constructively discharged an employee.”).            For these

reasons, we affirm the district court’s grant of summary judgment on Green’s constructive-

discharge claim.

                                                 V.

       For the reasons stated above, we affirm the district court on all counts.




                                                 16
