                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0676n.06

                                         No. 16-5163
                                                                                    FILED
                                                                              Dec 15, 2016
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

JOSH WHEELER,                   )
                                )
     Plaintiff-Appellant,       )
                                )
v.                              )
                                                    ON APPEAL FROM THE UNITED
                                )
                                                    STATES DISTRICT COURT FOR THE
JACKSON NATIONAL LIFE INSURANCE )
                                                    MIDDLE DISTRICT OF TENNESSEE
COMPANY,                        )
                                )
     Defendant-Appellee.        )
                                )

BEFORE:         DAUGHTREY, ROGERS, and COOK, Circuit Judges.


        MARTHA CRAIG DAUGHTREY, Circuit Judge. Plaintiff Josh Wheeler appeals the

grant of summary judgment to defendant Jackson National Life Insurance Co. (Jackson), and the

denial of summary judgment to Wheeler on claims under the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101–12213; the Family Medical Leave Act (FMLA), 29 U.S.C.

§§ 2601–2654; the Tennessee Public Protection Act, Tenn. Code Ann. § 50-1-304; the Tennessee

Disability Act, Tenn. Code Ann. §§ 8-50-103 to –104; and Tennessee common law. The district

court granted summary judgment to Jackson on all claims.

        Through its subsidiaries, Jackson markets and wholesales a variety of annuities to

independent and regional broker-dealers, “wirehouses,” independent agents, and financial

institutions.   To do so, Jackson employs both External Wholesalers (EWs) and Internal

Wholesalers (IWs). EWs and IWs are paired; EWs meet face-to-face with customers, and IWs

provide in-office support for the EWs, including scheduling meetings, closing sales, and helping
No. 16-5163, Wheeler v. Jackson National Life Insurance Co.


agents get the products they need. IWs, when not performing their support tasks, log into and

answer customer service calls from a telephone “queue,” to which callers are routed if the IW

they hope to reach is unavailable.     Because the calls must be monitored and recorded in

compliance with the Financial Industry Regulatory Authority rules, employees may log into the

queue only at Jackson’s office. The more Jackson employees who are logged into the queue, the

shorter the wait time for customers’ calls to be answered.

       Throughout his time at Jackson, Wheeler struggled with health impairments arising from

his narcolepsy, bipolar disorder, anxiety, emotional deregulation, and depression.    Jackson

granted Wheeler a number of leaves both under the FMLA and, when his FMLA leave was

exhausted, through paid or unpaid leaves of absence, as applicable under company policy.

Wheeler was under instructions that, should he need to be away from the office, he was to call

and notify Jackson of his absence.

       Eventually, Jackson created the position of Floating Internal Wholesaler (Floating IW)

for Wheeler as an accommodation for his medical conditions. The floating position was not

paired with a specific EW; instead, the Floating IW was responsible for being logged into the

queue in order to provide support to EWs in the event of an IW’s absence. All of Wheeler’s

supervisors—and Wheeler himself—recognized that telephone duties were the central role of the

Floating IW.

       In June 2013, Wheeler’s newly-appointed supervisor, Matt Cross, informed a human

resources employee, Laural Gooden, that Wheeler had been absent from work during May and

June without calling in and asked her to clarify how to handle those absences. A review of

Wheeler’s attendance and work records, conducted by human resources manager Donna

Douglas, showed that between April 24, 2013, and July 12, 2013, Wheeler had not used his



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No. 16-5163, Wheeler v. Jackson National Life Insurance Co.


identification badge to enter the building and had not logged into Jackson’s telephone system as

being present on 34 of those 58 working days. Their review also showed that even on the days

when he was at work, Wheeler was not fulfilling his job requirements. After investigating

Wheeler’s absences, Douglas completed a “reconciliation” of Wheeler’s time, opting to cover

Wheeler’s absences through July 5, 2013, with the 240 FMLA hours that had been available to

Wheeler prior to May 2013, rather than fire him for absenteeism. Douglas also required Wheeler

to apply for a general leave of absence in order to give Jackson time to follow up with his

doctors regarding Wheeler’s ability to fulfill the Floating IW job functions going forward, with

or without accommodations.

       The FMLA certifications and other information provided by Wheeler’s doctors made

clear that Wheeler could potentially require up to six days off for medical leave every other week

due to his bipolar disorder and up to one day off per week for his narcolepsy, with no indication

that these needs would abate in the future.      Two doctors advised Jackson that Wheeler’s

conditions were either lifelong or of unknown duration and unpredictable. This prognosis

marked more time away from work than the doctors previously had estimated would be

necessary.

       Based on this information, Jackson decided that a general leave of absence was not an

appropriate accommodation for Wheeler’s medical conditions; that Wheeler’s medical

conditions were life-long; that Wheeler would be unable to perform the essential functions of his

job for lengthy periods of time; and that a leave of absence would not enable Wheeler to return to

work and capably perform his job in a predictable and reasonable time. Jackson informed

Wheeler that it was terminating his employment effective August 9, 2013.




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No. 16-5163, Wheeler v. Jackson National Life Insurance Co.


       Wheeler then filed this action against Jackson, alleging discrimination and retaliation

based on disability, in violation of the ADA, interference with his rights under the FMLA, and

claims under the parallel state disability act and state common law. The parties filed cross-

motions for summary judgment—Jackson seeking dismissal of all claims and Wheeler seeking

judgment in his favor. In a lengthy and detailed opinion, the district court ably articulated the

applicable law and the reasons why summary judgment should be granted to Jackson in this case.

See Wheeler v. Jackson Nat’l Life Ins. Co., 159 F. Supp. 3d 828 (M.D. Tenn. 2016). We

therefore find it unnecessary to engage in an additional full-blown statement of fact and analysis.

Instead, we adopt the reasoning of the district court and its conclusions, with the following

additional observations.

       In the district court, Wheeler’s FMLA interference claim appeared to hinge on his

allegation that his FMLA leave had not been exhausted, because on most of the days that he was

not in Jackson’s office he was actually working from home and, further, that the company knew

of and had approved such an arrangement. The parties did not dispute that Wheeler could access

his emails remotely. However, Wheeler argued that he had been approved for “remote work”

privileges as an accommodation for his disability by “high-level” Jackson management. Even

so, Wheeler produced no evidence at all to show that he was approved for anything beyond

remote email access, nor any specific evidence of work that was done during his days at home.

       The district court dismissed Wheeler’s FMLA interference claim, concluding that

Wheeler had exhausted his FMLA leave and that “[he] was not performing the essential

functions of the F[loating] IW positions . . . regardless of whether he claims to have been

working from home.” Wheeler, 159 F. Supp. 3d at 863. Given the paucity of Wheeler’s

evidence, the district court properly determined that a jury could not reasonably find that Jackson



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No. 16-5163, Wheeler v. Jackson National Life Insurance Co.


unlawfully interfered with Wheeler’s FMLA rights and appropriately granted summary judgment

to Jackson on this claim.

        On appeal, Wheeler continues to dispute that the Floating IW position required him to

come into work regularly or that he was incapable of fulfilling his essential job functions. He

also contends that the district court’s focus on whether he was performing his “essential

functions” at home—rather than working at all—is reversible error. He maintains that he was

fired for discriminatory and retaliatory reasons, in violation of his rights under the ADA, and

suggests that Jackson’s explanations for requiring that he apply for a general leave of absence

and for his termination were pretextual. But, Wheeler has failed to create a genuine dispute of

material fact even as to whether he was working at all.         He has offered no evidence to

substantiate his claim that Jackson authorized him to work remotely, and he has provided no

evidence of any work he did while at home—no work-related emails; no testimony from

supervisors, IWs, or EWs that he assisted in any projects; and nothing he produced as the result

of his purported efforts.

       Finally, in its briefing on appeal, Jackson suggests that we adopt the honest-belief rule in

the context of FMLA interference claims. Because Jackson prevails in this matter without

recourse to any honest-belief-rule analysis, we need not discuss the merits of Jackson’s

suggestion.

       Having had the benefit of oral argument, and having studied the record on appeal and the

briefs of the parties, we are not persuaded that the district court erred in dismissing the

complaint. Because the reasons why judgment should be entered for the defendant have been

fully articulated by the district court, the issuance of a detailed opinion by this court would be

duplicative and would serve no useful jurisprudential purpose. Accordingly, we AFFIRM the



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No. 16-5163, Wheeler v. Jackson National Life Insurance Co.


judgment of the district court upon the reasoning set out by that court in its memorandum

opinion filed on January 4, 2016, and found at 159 F. Supp. 3d 828.




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