UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 16a0289n.06

No. 15-5645

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED

Jun 01, 2016

DEBORAH S. HUNT, Clerk

BARBARA PERRY,

Plaintiff-Appellant,

v.

AMERICAN RED CROSS BLOOD SERVICES, TENNESSEE VALLEY REGION,

Defendant-Appellee.

)

)

)

ON APPEAL FROM THE

)

UNITED STATES DISTRICT

)

COURT FOR THE MIDDLE

)

DISTRICT OF TENNESSEE

)

)

)

OPINION

)

)

)

Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges. KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Barbara Perry was an

employee of Defendant-Appellee the American Red Cross Blood Services, Tennessee Valley Region ("Red Cross"). Perry was fired pursuant to the Red Cross's absenteeism policy after she accrued seven unscheduled absences in a twelve-month period. Perry contends that she was terminated on the basis of her disabilities, in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. ? 12112, and the Family Medical Leave Act ("FMLA"), 29 U.S.C. ? 2612. She also argues that the Red Cross failed to accommodate her disabilities during her employment, in violation of the ADA. The district court granted summary judgment in favor of the Red Cross on all of Perry's claims. For the reasons discussed below, we AFFIRM the judgment of the district court.

No. 15-5645 Perry v. Am. Red Cross Blood Servs., Tenn. Valley Region

I. BACKGROUND Perry worked as an Apheresis Specialist at the Red Cross. R. 42 (Pl. Resp. to Def. Statement of Undisputed Facts at 1) (Page ID #623). During her employment at the Red Cross, Perry suffered from several illnesses and injuries; she also requested, and was approved for, periods of FMLA leave. A. FMLA Leave for 2010 Outpatient Foot Surgery On September 10, 2010, Perry had outpatient surgery on her right foot. R. 36-12 (Ex. 12 8/23/2010 Nuss Certificate at 2) (Page ID #377). Perry was approved for continuous-FMLA leave for this foot surgery on August 23, 2010. R. 36-14 (Ex. 14 FMLA Designation Notice) (Page ID #383).1 Perry's surgeon, Dr. H. H. Nuss, released Perry to return to work "with restrictions" on December 31, 2010. R. 36-13 (Ex. 13 12/29/10 Nuss Letter) (Page ID #381). At the time of Perry's foot surgery, employee requests for leave at the Red Cross were processed by Patty Holmes, the Human Resources Manager. R. 42 (Pl. Resp. to Def. Statement of Undisputed Facts at 3) (Page ID #625). Holmes emailed Perry's supervisors about Perry's restrictions upon returning to work, including that Perry would be "unable to stand 12 [hours] straight," that she should be "allow[ed] 30 min[ute] intervals on and off her feet," and that she "needs to be allowed to wear shoe gear that can accommodate her foot." R. 36-13 (Ex. 13 12/29/10 Nuss Letter) (Page ID #381); R. 36-16 (Ex. 16 12/29/10 Holmes Email at 1?2) (Page ID #388?89). John Yakoumis--the Apheresis Manager--told Holmes the Red Cross could

1Under the FMLA, an employee may take continuous or "intermittent[]" leave when medically necessary. 29 U.S.C. ? 2612(b)(1). While "continuous" leave is taken in one block of time, "[i]ntermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason." 29 C.F.R. ? 825.202.

2

No. 15-5645 Perry v. Am. Red Cross Blood Servs., Tenn. Valley Region

accommodate Perry's restrictions, although Perry would need to wear covered shoes because she worked around blood products. R. 36-16 (Ex. 16 12/29/10 Holmes Email at 1) (Page ID #388); see R. 45-6 (Ex. 5 Holmes Dep. at 26?27) (Page ID #1246). Perry's restrictions were updated on February 4, 2011 to indicate that Perry needed "to avoid walking on concrete as much as possible," which Yakoumis also indicated that he could accommodate. R. 36-17 (Ex. 17 02/04/11 Yakoumis Email) (Page ID #391). All of Perry's foot-surgery restrictions ended on May 1, 2011. R. 36-18 (Ex. 18 3/18/11 Nuss Letter) (Page ID #393). B. Change in Red Cross Leave-Request Policy

On April 1, 2012, the American Red Cross outsourced its leave-request processing-- previously handled by Holmes--to Aon Hewitt, a third-party administrator operating under the name "American Red Cross Benefits Service Center." R. 42 (Pl. Resp. to Def. Statement of Undisputed Facts at 3) (Page ID #625). The Red Cross notified employees of this change by email and flyers. Id. at 4 (Page ID #626); see also R. 36-4 (Ex. 4 Transition Email) (Page ID #332); R. 36-5 (Ex. 5 Transition Flyer) (Page ID #334). These informational flyers notified employees that beginning on April 2, 2012, Aon Hewitt would administer FMLA absences, personal leave, and non-FML medical leave, in addition to other absences. R. 36-5 (Ex. 5 Transition Flyer) (Page ID #334). Employees were informed that "[t]o initiate a leave request," they should first "[r]eport any immediate or upcoming absences from work to your manager/supervisor using your department's attendance procedure," and then employees should "[c]all [Aon Hewitt] at any time to request leave." Id. Employees should then return any

3

No. 15-5645 Perry v. Am. Red Cross Blood Servs., Tenn. Valley Region

"documentation within the required time frame." Id.; see also R. 45-6 (Ex. 5 Holmes Dep. at 53?54) (Page ID #1252?53) ("[Employees] are supposed to report [FMLA leave] to Aon Hewitt, and they're supposed to follow the normal procedures for the local office as well."); R. 45-7 (Ex. 6 Yakoumis Dep. at 37) (Page ID #1285). Perry does not dispute that she received this information. R. 42 (Pl. Resp. to Def. Statement of Undisputed Facts at 4) (Page ID #626). C. FMLA Leave for Essential Tremor

In April 2012, after Aon Hewitt assumed responsibility for leave requests, Perry submitted a request to Aon Hewitt for intermittent leave under the FMLA. R. 36-24 (Ex. 24 Claim #6513 Acknowledgement Letter) (Page ID #408); R. 36-25 (Ex. 25 Cruz Letter at 2) (Page ID #412). In support of her request, Perry submitted a letter from Dr. Helion Cruz, who certified that Perry "has an essential tremor, which can affect upper extremities, head, and voice. Sometimes it can affect the ability to perform fine motor movements, which are certainly necessary as a phlebotomist." R. 36-25 (Ex. 25 Cruz Letter at 2) (Page ID #412). The certification provided that Perry's condition was "chronic" and that she would need to have treatment visits "twice a year" and that "[w]hen tremulous, [Perry] may have difficulty performing tasks that require fine motor control." Id. at 2?3 (Page ID #412?13). Cruz estimated the frequency of Perry's flare ups to be one time per month, lasting approximately one day per episode. Id. at 3 (Page ID #413). According to Perry, her tremor could interfere with her ability to use the small "handheld computers" at work, "[b]ut for the majority of the part, [her] tremor, it

4

No. 15-5645 Perry v. Am. Red Cross Blood Servs., Tenn. Valley Region

did not affect [her] sticking" patients with needles. R. 45-2 (Ex. 1 Perry Dep. Part Two at 99) (Page ID #1048).

Aon Hewitt approved intermittent FMLA leave for Perry's essential tremor on April 12, 2012. R. 36-26 (Ex. 26 4/12/12 Claim Approval Letter) (Page ID #416). The intermittent leave period extended from April 2, 2012 through October 2, 2012. Id. Aon Hewitt's approval letter provided instructions for how to utilize intermittent leave:

When you are away from work due to your intermittent leave, you are required to contact [Aon Hewitt] to report your absences. Refer to the enclosed How to Report Intermittent Absences for specific instructions. In addition, you must also contact your manager/supervisor to report any absences, consistent with any established policy for reporting absences in your department or unit. Id. The enclosed "How to Report Intermittent Absences Form" provided specific instructions for reporting absences to Aon Hewitt. R. 36-27 (Ex. 27 Absences Form) (Page ID #419). Perry also does not dispute that she received this information. R. 42 (Pl. Resp. to Def. Statement of Undisputed Facts at 10) (Page ID #632). D. FMLA Leave for 2012 Fall From Ladder In May 2012, Perry was injured after falling off of a ladder at home. R. 36-29 (Ex. 29 Health Certification) (page ID #425). On June 6, 2012, Dr. Brett Darwin certified that Perry needed continuous FMLA leave for this injury, beginning on May 22, 2012 and lasting until June 28, 2012. Id. The Red Cross approved Perry's request for FMLA leave during these dates. R. 36-30 (Ex. 30 Claim Approval Email) (Page ID #427). Perry's continuous leave was eventually extended until July 9, 2012. R. 36-31 (Ex. 31 6/28/12 Holmes Email) (Page ID #429). Darwin

5

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download