NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0786n.06
No. 13-1036
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
CATHIE KEMPTER, ) Aug 26, 2013
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) On Appeal from the United States
) District Court for the Eastern
MICHIGAN BELL TELEPHONE COMPANY, ) District of Michigan
dba AT&T Michigan; TRACY BAIN; RICK SPIECE, )
aka Rick Speice; RENEE GARCIA, )
)
Defendants-Appellees. )
Before: BOGGS and McKEAGUE, Circuit Judges; BECKWITH, Senior District Judge.*
BOGGS, Circuit Judge. Cathie Kempter, a customer service representative for Michigan Bell
Telephone (MBT), developed carpal tunnel syndrome and took eight months of medical leave, but
was fired after her leave expired and she failed to return to work. Kempter brought this
discrimination suit under the Americans with Disabilities Act, arguing that she was fired on the basis
of her disability rather than her attendance, and that MBT failed to provide her either of her two
proposed reasonable accommodations. One accommodation involved placement in a light-duty
position for recuperating employees; the other involved transfer to a vacant position that involved
less typing. The district court rejected Kempter’s arguments, finding that her carpal tunnel syndrome
*
The Honorable Sandra S. Beckwith, United States Senior District Judge for the Southern
District of Ohio, sitting by designation.
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was not a “disability” under the ADA, and alternatively that both of her accommodations were
unreasonable and unsupported by the facts. On appeal, MBT requests imposition of sanctions for
prosecuting a frivolous appeal. For the following reasons, we affirm the decision of the district court
and impose sanctions on Kempter’s counsel.
I
For over 12 years, Kempter worked as a customer service representative for MBT. Customer
service representatives answer calls from customers and input their information into a computer
database. The job involves at least six hours of typing a day. (See Kempter Deposition at 38, R.13-
12 at PageID# 119.) As a result of her extensive keyboard and mouse work, Kempter developed
carpal tunnel syndrome.
In July 2009, Kempter began medical leave to have surgery for her carpal tunnel syndrome.
Three months after the surgery, Kempter’s doctor, Dr. Arno Weiss, indicated that Kempter was
restricted from “working with computer keyboard or typing for more than 2 hours a day” and the
restrictions are “to be permanent.” (Dr. Weiss Note, R.13-9.) On March 10, 2010, Kempter was
examined by Dr. B.J. Page, an independent doctor engaged by MBT to determine if Kempter was
entitled to continuing disability leave. Dr. Page concluded that Kempter did not require further
treatment and was fit to return to work without “any work restrictions.” (Dr. Page Report at 5, R.15-
8.) As a result, MBT’s disability carrier informed Kempter on March 22 that her disability benefits
were being terminated and that she was expected to return to work the next day, Tuesday, March 23.
(Kempter Fax, R.13-8.) Kempter responded that day, attaching the note from Dr. Weiss and
explaining that “I am unable to keyboard no more than 2 hours per day . . . [s]o at this time I will not
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be able to return to work.” (Ibid.) Kempter ultimately showed up on Friday, March 26, but was
suspended pending dismissal due to her failure to attend from March 23 to 25. (Suspension Letter,
R.13-6.) She was formally terminated on April 19. (Termination Letter, R.13-7.)
Kempter was fired because she had reached the last step in MBT’s “progressive discipline
path” for unexcused absences. (Attendance Policy at 4, R.13-3.) Under MBT’s attendance policy,
five “chargeable disability absences” within a five-year period result in termination (the first absence
is excused, the second two receive written warnings, the fourth three days unpaid suspension).
(Ibid.) “Chargeable disability absences” are those absences caused by “on/off the job injury or
illness, as well as any relapse, for which the employee receives short-term disability benefits, but are
not protected by the FMLA.”1 (Id. at 1.) By contrast, “excluded absences,” which do not factor into
attendance determinations, include absences covered by the collective bargaining agreement (e.g.,
paid sick leave), the FMLA, company policy, or other applicable law. (Ibid.) Kempter had a poor
attendance record during her twelve-year tenure at MBT, often due to exhausting her FMLA leave,
accumulating 31 steps of corrective action with 10 suspensions. (Grievance Minutes, R.13-4.) At
the time of her March 23 25 absence, Kempter was at the fourth disciplinary stage, having been
1
The Family and Medical Leave Act (FMLA) permits 480 hours of leave per year if an
eligible employee has “a serious health condition that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). If an employee exhausts
her FMLA leave, further absences will be considered “chargeable disability absences,” per company
policy
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suspended without pay on November 13, 2008. (Suspension Letter, R.13-6.) Because this was the
fifth absence in five years, she was fired.2
Kempter filed a written grievance on April 30, 2010, which was denied at all three steps of
MBT’s internal grievance process. (Grievance Documents, R.15-7.) She subsequently filed this suit,
raising claims under the Americans with Disabilities Act (ADA) and state discrimination laws. MBT
moved for summary judgment, arguing that as Kempter was unable to perform an essential function
of her job (keyboard and mouse work) and could not show the existence of a reasonable
accommodation, she was not entitled to the protections of the ADA. As to the reasonable
accommodations, MBT explained that 1) Kempter did not request any accommodation other than
to type only two hours a day, which was not reasonable, and that 2) there were no vacant positions,
since the only possible position also required the ability to type more than two hours a day, and had
to be filled by someone else (Keith Hannen) due to a provision in the collective bargaining
agreement. In response, Kempter primarily argued that MBT impermissibly fired her because of her
disability, not on the basis of attendance. In the fact section of her response, she also argued there
were three possible reasonable accommodations. First, she argued for a similar accommodation to
Diana Rodabaugh, who also had carpal tunnel syndrome. Rodabaugh testified that as an
accommodation under MBT’s “Transitional Work Program,” MBT had given her a position
involving no typing (in fact, “not doing anything” except “sitting there”). (Rodabaugh Deposition
2
Although Kempter’s arguments heavily focus on the details of her termination and the
attendance policy, these facts were ultimately not relevant to the district court’s decision. Likewise,
these facts are not relevant to the legal issues in this appeal, except as background.
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at 24, R.15-9.) Second, Kempter argued there was a vacant position as a “technical associate” that
required “minimal” typing. (Hannen Deposition at 30, R.15-10.) Finally, she also asserted, based
on Keith Hannen’s testimony, that there was another similar technical associate position that
remained vacant.
The district court granted summary judgment for MBT. The court first held that Kempter’s
carpal tunnel syndrome did not constitute a disability for the purposes of the ADA, as it is not an
impairment that “substantially limits one or more of the major life activities of such individual.” 42
U.S.C. § 12102(2). In the alternative, the court held that even if Kempter was disabled, she failed
to show that she could perform an essential function of the job, with or without reasonable
accommodation. Kempter argued only that reasonable accommodations existed, and the district
court found her proposed accommodations unreasonable. In particular, the court found that
Kempter’s own testimony showed that there were no vacant positions at the time of her termination.
(Kempter Deposition at 75, R.13-12.) Declining to exercise supplemental jurisdiction, the district
court remanded Kempter’s remaining state-law claims to the state court.
Subsequently, MBT moved for costs and attorney’s fees, $1,970 and $25,000 respectively.
(R.21.) The district court granted costs, since they are awarded as a matter of course to the
prevailing party, Fed. R. Civ. P. 54(d)(1), but declined to award attorney’s fees. While conceding
that this was not “a close case,” the court found that this was not the type of “extreme” case
warranting the sanction of attorney’s fees. The court noted, however, that if a Rule 11 motion for
sanctions had been brought, and Kempter, “in the face of such a motion, continued onward,” the
outcome might have been different.
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Kempter appeals the grant of summary judgment. MBT has filed a motion under Federal
Rule of Appellate Procedure 38, 28 U.S.C. § 1912, and 28 U.S.C. § 1927 for sanctions, arguing that
the appeal is frivolous, contains misrepresentations, and that Kempter was warned twice that her
claims had no merit.
II
We review de novo a district court’s grant of summary judgment. Chattman v. Toho Tenax
Am., Inc., 686 F.3d 339, 346 (6th Cir. 2012). Summary judgment is appropriate where the record
shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The court must view all of the facts and draw all
reasonable inferences in the light most favorable to the nonmoving party. Fuhr v. Hazel Park Sch.
Dist., 710 F.3d 668, 673 (6th Cir. 2013). Nevertheless, the issue of fact must be “genuine.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment
will be denied only where the record as a whole could lead a rational trier of fact to find for the
nonmoving party. Ibid.
The ADA prohibits employment discrimination against a “qualified individual on the basis
of disability.” 42 U.S.C. § 12112(a). Where the ADA claim is based on direct evidence of
discrimination, the initial burden is on the plaintiff to show that she (1) has a disability, and (2) is
“otherwise qualified” for the position, either “(a) without accommodation from the employer; (b)
with an alleged ‘essential’ job requirement eliminated; or (c) with a proposed reasonable
accommodation.” Kleiber v. Honda of Am. Mfg., Inc, 485 F.3d 862, 869 (6th Cir. 2007) (internal
quotation marks omitted); Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.
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1996), abrogated on other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312 (6th
Cir. 2012). After the prima facie case is made, the burden shifts to the employer to prove that the
“challenged job criterion is essential” (defeating the employee’s showing in (b)) or that the
“proposed accommodation will impose an undue hardship upon the employer” (defeating the
employee’s showing in (c)). Kleiber, 485 F.3d at 869 (internal quotation marks omitted).3
Before proceeding to the analysis, we note that Kempter does not appear to understand the
relevant ADA standard. The entire argument section of Kempter’s brief below was devoted to
arguing that MBT terminated Kempter on the basis of her disability, as shown by both direct and
indirect evidence. R.15. This might be enough in a sex or race discrimination case, see 42 U.S.C.
§ 2000e-2, but under the ADA one must also show that the individual is “otherwise qualified,”
regardless of the motive for firing. In other words, the plaintiff must show that she can perform the
essential functions of the job, with or without reasonable accommodations. The district court
focused on this “otherwise qualified” aspect of Kempter’s claim, leaving the question of whether
MBT discriminated on the basis of disability unanswered.
On appeal, Kempter has added a new section to her brief, styled as “Kempter’s Retaliation
Claim.” Appellant’s Br. at 24. This “retaliation” claim was not raised below, and the “protected
activity” Kempter engaged in (a letter sent from her lawyer five months after termination) cannot
3
While Kempter’s argument that she was fired because of her disability and not for
violating MBT’s attendance policy is very weak, the district court did not decide the issue. Thus,
for the sake of argument, we will use only the direct, not indirect, evidence standard. In any case,
with respect to essential functions and reasonable accommodation, the two legal standards are
similar and the differences are immaterial in this particular case. See Hedrick v. W. Reserve Care
Sys., 355 F.3d 444, 452 53 (6th Cir. 2004) (laying out both standards).
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support a claim of retaliation because it occurred after the adverse employment action. See 42
U.S.C. § 12203(a); Walborn v. Erie Cnty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Read
generously, however, this section at least provides some argument that there were reasonable
accommodations available a necessary element of an ADA discrimination claim (assuming the
plaintiff fails to show she can perform the essential functions of the job).
III
As Kempter does not dispute that typing is an “essential function” of the job of a customer
service representative, she must demonstrate that she could have performed her essential job duties
with a reasonable accommodation. Before the burden shifts to the employer to show an undue
burden, the plaintiff must propose an accommodation that is objectively reasonable to employers in
general. Walsh v. United Parcel Svc., 201 F.3d 718, 726 n.3 (6th Cir. 2000). None of her proposed
accommodations are reasonable.
First, Kempter argues that she could have been accommodated in the same way as Diana
Rodabaugh, who also had carpal tunnel syndrome, by giving her a light-duty, non-typing job. As
Kempter explains, this position was part of MBT’s “Transitional Work Program,” which gives
injured employees the chance to ease back into regular employment. Employers are not required to
convert “temporary light-duty positions for recuperating employees” into permanent positions.
Hoskins v. Oakland Cnty. Sheriff’s Dep’t, 227 F.3d 719, 730 (6th Cir. 2000). Since Kempter’s
doctor’s note indicates that her restrictions are “permanent,” this was not a reasonable
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accommodation for Kempter to propose.4 If, instead, this light-duty accommodation is considered
a permanent position, Kempter has not shown that there was an additional job opening; it is not
reasonable for an employer to create a new position to accommodate a disabled employee. See Smith
v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997). In addition, based on Rodabaugh’s description of
the job, the proposed accommodation is glaringly unreasonable: a job that consists of “not doing
anything” serves no function.
Second, Kempter argues that there was a vacant position as a “technical associate,” which
opened up shortly after her termination and was filled by Keith Hannen. Employers do generally
have an obligation to offer as an accommodation positions that are currently unavailable but will
become vacant in a reasonable period of time. Monette, 90 F.3d at 1187. But the employer need not
reassign the employee if the employee is not qualified, or if another employee’s rights would be
displaced. Hedrick, 355 F.3d at 457. Here, the “technical associate” position, although not requiring
as much typing as a customer service representative position, still mandated typing and mouse
aptitude. Keith Hannen testified that he took a typing test to qualify for the job, and that the job
involved repetitive point-and-click mouse operations. Kempter has not provided any factual basis
to counter MBT’s claim that she would be unqualified for the job. In addition, assignment of the
position to Kempter would have violated Hannen’s rights under the collective bargaining agreement,
since “surplussed” employees (i.e., those affected by downsizing) are supposed to have priority.
4
Kempter protests that the independent evaluator’s medical opinion that Kempter was not
permanently disabled and could do work must be factored in. But if we accept this position,
Kempter should have simply returned to work on March 23 to her old job without accommodation,
and we would not have this suit.
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Kempter does not dispute this fact, but argues that the ADA trumps collective bargaining rights. But
the case cited by Kempter states that “the employer’s showing of violation of the rules of a seniority
system is by itself ordinarily sufficient” to render the accommodation unreasonable. U.S. Airways,
Inc. v. Barnett, 535 U.S. 391, 405 (2002). Kempter has not shown any sort of “special
circumstances” that would warrant deviating from the general rule. Ibid.
Finally, Kempter suggests that there was another unfilled technical associate position that she
could have taken. But, as Kempter herself testified, this previous employee’s position was vacant
only because that position had been “downsized.” (Kempter Deposition at 75, R.13-12.) Just as
employers are not required to create new positions, they are not required to resurrect old positions.
As none of her accommodations are objectively reasonable, her claim fails.
IV
Kempter also challenges the district court’s alternate holding that she could not be considered
disabled in the first place, since her carpal tunnel syndrome was a “limited impairment [that] would
not significantly restrict her ability to perform a broad range of jobs in various classes.” McKay v.
Toyota Motor Mfg., U.S.A., Inc., 110 F.3d 369, 373 (6th Cir. 1997). She argues that the 2008 ADA
Amendment Act called into question the cases on which the district court relied. Pub. L. No.
110 325, 122 Stat. 3553.
We decline to address this issue. The record on the issue is sparse, and given the weakness
of Kempter’s proposed accommodations, this case is resolvable without construing the 2008
Amendments.
V
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MBT has moved for sanctions under Federal Rule of Appellate Procedure 38, 28 U.S.C. §
1912, and 28 U.S.C. § 1927. Rule 38 provides that if the court “determines that an appeal is
frivolous, it may . . . award just damages and single or double costs to the appellee.” Fed. R. App.
P. 38. Such sanctions are appropriate if the appeal is “wholly without merit” or the arguments “had
no reasonable expectation of altering the district court’s judgment based on law or fact.” B & H
Medical, L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008) (internal quotation marks
omitted). Bad faith is not “required,” but “we will usually impose Rule 38 sanctions only where
there was some improper purpose, such as harassment or delay, behind the appeal.” Ibid. (internal
quotation marks and alterations omitted; italics in original); see also Wilton Corp. v. Ashland
Casting Corp., 188 F.3d 670, 677 (6th Cir. 1999) (“Thus, though we find this appeal to have been
filed without delay or bad faith, we do find it to be wholly without merit. . . . Where a client
reasonably relies on the advice of counsel, it may be that a sanction for a frivolous appeal is properly
imposed on the attorney if the appeal is without merit or substance.”). Additionally, sanctions may
be warranted where the appellants fail to discuss “key aspects of the [district] court’s holding” and
“merely reiterate the arguments they made to the district court.” B & H Medical, L.L.C., 526 F.3d
at 270 (internal quotation marks and alterations omitted). Section 1912 is “similar,” Waeschle v.
Dragovic, 687 F.3d 292, 296 (6th Cir. 2012), providing that an appellate court “in its discretion may
adjudge to the prevailing party just damages for his delay, and single or double costs.” 28 U.S.C.
§ 1912. Section 1927 provides for sanctions against an attorney “who so multiplies the proceedings
in any case unreasonably and vexatiously.” 28 U.S.C. § 1927.
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This case does not involve any serious misrepresentations,5 vexatious tactics, or other overt
signs of bad faith. (See Order Denying Fees, R.28 at 7) (noting lack of “vexatious tactics” below).
However, Kempter’s appeal suffers from such serious factual and legal issues that sanctions are
warranted.
In her appeal, Kempter continues to rely on a liberal, and often misleadingly selective,
reading of the record. Kempter does not discuss the facts surrounding her dismissal, failing to
directly mention much less justify her March 23 25 absence. She fails to reference the note from
her doctor, Dr. Weiss, recommending permanent restrictions. While passing over these facts, she
irrelevantly cites her lawyer’s pre-suit demand letter in full. In her reasonable accommodation
argument, Kempter neglects to mention that the second supposedly vacant technical associate
position Kempter “could have been placed in” had been eliminated two years earlier. She also fails
to respond to MBT’s arguments that she would not be qualified to perform the technical associate
job. She relies solely on Keith Hannen’s statement that the amount of typing on a day-to-day basis
is “minimal.” But MBT argues that the ability to type for prolonged periods is essential and, in any
case, that the job unquestionably requires significant mouse work a repetitive task ill-suited to
employees with carpal tunnel syndrome.
5
MBT does accuse Kempter of misrepresentation, specifically, in stating that Rodabaugh was
fired for her testimony in support of Kempter. According to MBT, Rodabaugh had been on medical
leave, but returned to work February 7, 2013. Kempter only weakly replies that: “Just like any other
case, the plaintiff has her version of the facts, and the defendants have theirs.” This fact is legally
unimportant, but its potential misrepresentation is consistent with Kempter’s cavalier treatment of
the record.
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Kempter’s appeal also suffers from the failure to properly apply the relevant legal standard.
Kempter never lays out the elements of an ADA discrimination claim, and despite the district court’s
passing on the issue, continues to press her argument that she was fired on the basis of disability.
Much of Kempter’s appellate brief is lifted from below, and success on the new issue raised the
effect of the 2008 ADA Amendments would not be sufficient to warrant reversal. It is true that
Kempter added several pages of argument with respect to the only necessary issue: whether MBT
could have provided reasonable accommodation.6 But this added argument was presented in the
form of a “retaliation” claim, which had not been raised below, either in briefing or in the complaint.
In addition, the only really new argument in this section that the ADA may take precedence over
collective bargaining rights is easily refuted. MBT responded with several cases establishing the
contrary proposition, to which Kempter has not responded. Indeed, Kempter failed to file a reply
brief altogether, a problematic factor given the strength of MBT’s response. Leeds v. City of
Muldraugh, 174 F. App’x 251, 256 (6th Cir. 2006).
Standing alone, these deficiencies might be considered mere “negligence or incompetence.”
Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 646 (6th Cir. 2006).
However, the district court’s warning below that this was not “a close case” and that Rule 11
sanctions might have been justified demonstrates that Kempter’s counsel “knowingly disregarded
the risk” of pursuing a frivolous appeal. Scherer v. JP Morgan Chase & Co., 508 F. App’x 429, 339
(6th Cir. 2012) (internal quotation marks and alteration omitted). In Scherer, the district court also
6
Even this new argument section is mostly cut-and-pasted: pages 25 28 of the brief’s new
section are nearly identical to pages 8 10 of the fact section.
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elected not to impose sanctions, but noted that the decisions was a “very close call.” Ibid. Likewise,
counsel in that case evidenced a marked lack of familiarity with the relevant law and failed to file
a reply brief. Ibid.
Kempter’s response to the motion for sanctions serves only to underscore the previously
stated inadequacies. The response fails to recognize that the district court granted the motion for
summary judgment on two independent grounds, and that reasonable accommodations must be
shown to establish a prima facie ADA case. Instead, the response claims that “the district court
committed reversible error when granting Defendant’s [motion for summary judgment] based on pre-
ADAAA case law” and that “asserting her right to challenge a district court opinion on appeal
without fear of sanctions is the best way to accomplish meaningful change in civil rights law.” Resp.
to Mot. for Sanctions at ¶¶ 7, 9. But invoking the high principles of civil-rights litigation and issues
of first impression does nothing to change the underlying factual weakness of her claims. Instead
of actually defending her proposed accommodations, Kempter’s response tersely states that “the
District Court Opinion speaks for itself.” Id. at ¶ 10. Rule 38 and 28 U.S.C. § 1927 do not permit
a lawyer, ostrich-like, to continue prosecuting a case while refusing to recognize the relevant legal
standard or counter the opposing party’s factual arguments.
VI
For the foregoing reasons, the district court’s grant of summary judgment is affirmed. We
impose a $5,000 sanction on Kempter’s counsel, payable to MBT within 30 days of the issuance of
our mandate.
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