Donald Bush v. Compass Group USA

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0181n.06

No. 16-6258

UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Mar 23, 2017
DEBORAH S. HUNT, Clerk
DONALD BUSH,

Plaintiff-Appellant,

v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
COMPASS GROUP USA, INC., WESTERN DISTRICT OF KENTUCKY

Defendant-Appellee.

_____________________________/

BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Donald Bush appeals from the order entered by the

district court on July 13, 2016 granting summary judgment to Defendant Compass Group USA,

Inc. On appeal, Bush argues that the district court overlooked genuine issues of material fact as

to his claims against Compass Group for: (i) disability discrimination under the Americans with

Disabilities Act, 42 U.S.C. § 12112 (“ADA”), and the Kentucky Civil Rights Act, Ky. Rev. Stat.

§ 344.040 (“KCRA”); and (ii) unlawful retaliation under the Family and Medical Leave Act,

29 U.S.C. § 2615 (“FMLA”), and the Kentucky Workers’ Compensation Act, Ky. Rev. Stat.

§ 342.197 (“KWCA”). He asks us to vacate the district court’s summary judgment order, and

remand for trial. We have subject matter jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291.

For the reasons set forth below, we AFFIRM the district court’s judgment.
 No. 16-6258

BACKGROUND

I. Factual History

Donald Bush is a resident of the Louisville, Kentucky area. For roughly two years

between 2010 and 2012, Bush was employed as a chef manager by Eurest Dining Services, an

entity controlled by Compass Group. His direct supervisor was Bill Tardy, the District Manager

for Eurest. Bush’s job duties as a chef manager involved supervising a staff of six cooks, and

providing food preparation and catering services for Eurest’s clients. Bush was assigned to work

in the on-site café of one of Eurest’s clients, an insurance company called Kentucky Farm
Bureau (“KFB”).

On May 17, 2012, Bush sent an email to three high-ranking KFB managers: (i) notifying

them that he suffered from cervical/thoracic spondylosis, a degenerative back condition,

(ii) informing them that he wished to attempt to transfer to a less physically demanding job

within Compass Group; and (iii) requesting their assistance in bypassing Bush’s supervisor,

Tardy, because Bush predicted that Tardy would not be amenable to the transfer.1 The full email

read as follows:

I have been diagnosed with severe cervical / thoracic spondylosis which has
rapidly progressed since Oct 2011 and is negatively affecting me physically /
emotionally both here and at home. I have another appointment at Norton
Letherman Spine Center to be tested for Ankylosing Spondylitis due to current
additional symptoms. Both conditions are chronic and progressive, treatable, but
not curable and require behavior modifications to slow the progression. In the
best interests of us all I am trying to transfer to a new property in the Flick sector
of Compass Group that is in need of a Chef Manager that is more manager /
director than chef and has minimal caterings. The position would not start until
the new school year which will allow time for acclimating a new Chef Manager to
KFB with a smooth transition. I feel that Bill Tardy will oppose this and possibly
even try to throw a stopper to it in which case I will need any assistance you can
give. I have two large caterings next week that I have arranged additional labor
for and will be able to get through without issue. I intended to discuss this with
you at our next meeting. I apologize for any inconveniences and appreciate
everything.

1
Bush later admitted that he had no basis for his belief that Tardy would block his
transfer request.
2
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(R. 26-2, PageID # 300.) The KFB managers subsequently testified that they understood Bush’s

email to mean that he planned to move on to another job by fall 2012, and that he would

“provide for a smooth transition” for his replacement. (R. 26-4, PageID # 379.)

Over the next several months, Bush applied for ten positions (including one position

twice) within Compass Group, most of which would have been promotions over his chef

manager position. Bush was rejected for each of these positions either because he did not meet

the position’s qualifications, or because the position was ultimately not filled due to business

restructuring.
While Bush was applying for new jobs in the second half of 2012, his physical condition

deteriorated, and Bush provided Tardy with several notes from his treating physicians ultimately

limiting Bush to lifting no more than ten pounds. Bush testified during his deposition that the

chef manager position regularly required him to lift up to fifty pounds—meaning that his back

condition effectively prevented him from performing the physical duties associated with his job.

In order to cover those duties, Bush hired additional temporary workers, which increased the cost

of performing services for KFB.

Curiously, during this same period, Bush repeatedly told KFB management that he could

not perform his duties as chef manager, and that he wanted to transfer to a different position

within Compass Group, even though KFB was not his employer. This left KFB concerned about

Bush’s ability to both meet KFB’s catering requirements, and to continue operating the Eurest-
run café at KFB’s headquarters. On August 27, 2012, KFB asked Eurest to accelerate the

transition to Bush’s replacement so that a reliable chef manager would be in place in time for

KFB’s October board meetings.

On September 13, 2012, Tardy placed a job posting for a new chef manager. Tardy’s

plan was to hire a new chef manager, and then have Bush stay on temporarily at KFB to train the

new hire while Bush looked for other work. Bush assisted Tardy in searching for a replacement

chef manager by setting up cooking tests for prospective candidates.

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During one such test on October 25, 2012, Bush “cracked” when he realized that he

would likely lose his job within Compass Group, and had “a nervous breakdown” that his

“doctor said . . . was post traumatic stress disorder.” (R. 26-2, PageID # 235.) Bush left during

the test without informing Tardy or obtaining permission to miss the rest of the work day. Later

that evening, Bush called KFB’s director and notified him that Bush would not come in the next

morning to open KFB’s café. Bush checked into a hospital for psychiatric care on October 26,

2012. Tardy covered Bush’s job duties at KFB that day, and hired Bush’s replacement on

October 29, 2012.
After Bush’s breakdown on October 25, 2012, KFB management insisted to Eurest that

Bush be replaced. Compass Group planned to give Bush six-to-eight weeks to try to find other

employment, and then to terminate his employment at the end of that period.

On October 29, 2012, Bush submitted a request for FMLA leave, which was granted for

the period October 26, 2012 through January 18, 2013. Bush was released to return to work by

his doctors on December 7, 2012. Because Bush had been replaced, and KFB no longer wished

to work with him, Bush remained on leave status and did not return to work as a chef manager.

On January 7, 2013, Compass Group offered Bush a severance package, which he declined.

Bush was laid off on January 10, 2013, retroactive to December 10, 2012.

II. Procedural History

On February 4, 2014, Bush brought suit against Compass Group in the Jefferson County,
Kentucky Circuit Court, asserting claims for: (i) disability discrimination under the Americans

with Disabilities Act and the Kentucky Civil Rights Act; (ii) unlawful retaliation under the

Family and Medical Leave Act; and (iii) unlawful retaliation under the Kentucky Workers’

Compensation Act. Compass Group removed the suit to the Western District of Kentucky.

After extended discovery, Compass Group moved for summary judgment on all claims.

On July 13, 2016, the district court granted Compass Group’s summary judgment motion

in its entirety. Bush v. Compass Grp. USA, Inc., 194 F. Supp. 3d 580, 589 (W.D. Ky. 2016.)

As to Bush’s workers’ compensation retaliation claim, the district court determined that

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undisputed record evidence showed that Compass Group fired Bush because he could not

continue to function as a chef manager, and concluded that the four-to-eight month gap between

when Bush reported his workplace injuries and his firing was insufficient to create a triable fact

issue. Id. at 585–86. The district court next determined that Bush could not state a prima facie

case of disability discrimination because he admitted during his deposition that he was physically

incapable of continuing as a chef manager, with or without accommodations. Id. at 587–88.

Finally, the district court dismissed Bush’s FMLA retaliation claim because the record showed

that Compass Group planned to fire Bush before he even decided to take FMLA leave. Id. at
588–89.

The district court entered judgment against Bush the same day it released its summary

judgment opinion. On August 8, 2016, Bush filed a timely notice of appeal.

DISCUSSION

I. Standard of Review

We review de novo the district court’s grant of summary judgment. See, e.g., Kelly

Servs., Inc. v. Creative Harbor, LLC, 846 F.3d 857, 862 (6th Cir. 2017). A movant is entitled to

“summary judgment if the movant 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). “When

evaluating a summary judgment motion, the reviewing court must construe the facts in the light

most favorable to the non-movant.” Gillis v. Miller, 845 F.3d 677, 683 (6th Cir. 2017).
A “genuine issue of material fact exists when there is sufficient evidence for a trier of fact to find

for the non-moving party.” Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 565 (6th Cir.

2016). “[T]he mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

(1986) (emphasis in original).

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II. ADA and KCRA Claims

A. Qualified Individual with a Disability

The Americans with Disabilities Act provides that “[n]o covered entity shall discriminate

against a qualified individual on the basis of disability in regard to job application procedures,

the hiring, advancement, or discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Similarly, the

Kentucky Civil Rights Act makes it an “unlawful practice” for an employer to “discharge any

individual . . . because the person is a qualified individual with a disability . . . .” Ky. Rev. Stat.
§ 344.040(1)(a). We “interpret Kentucky protections for the disabled consonant with the federal

Americans with Disabilities Act,” Henderson v. Ardco, Inc., 247 F.3d 645, 649 (6th Cir. 2001),

except that the federal definition of a disability is broader than Kentucky’s definition by virtue of

the ADA Amendments Act of 2008. See Breen v. Infiltrator Sys., 417 F. App’x 483, 486 (6th

Cir. 2011) (“Although Congress recently expanded the definition of ‘regarded as disabled,’ . . .

that amendment has yet to be incorporated into the Kentucky statute . . . so the pre-2008 ADA

standards apply . . . .”). Because the parties concede that Bush is disabled within the meaning of

both statutes, we will analyze Bush’s ADA and KCRA claims together.

ADA discrimination claims are governed by the McDonnell Douglas burden-shifting

framework. See, e.g., Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir.

2008). Under that framework: (i) the plaintiff must first “establish a prima facie case of
discrimination;” (ii) then the defendant must articulate legitimate, non-discriminatory reasons for

its actions; and finally (iii) “the plaintiff must show by a preponderance of the evidence that the

proffered explanation is a pretext for discrimination.” Id.

“To prove a prima facie case of disability discrimination, a plaintiff must show that

(1) he is disabled, (2) he is otherwise qualified to perform the essential functions of a position,

with or without accommodation, and (3) he suffered an adverse employment action because of

his disability.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 433 (6th Cir.

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2014). The plaintiff must prove that his disability was the “but-for” cause of his termination.

Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012) (en banc).

The district court granted summary judgment against Bush’s ADA and KCRA claims at

the first step of the McDonnell Douglas framework because it determined that Bush failed to

make out a prima facie case of disability discrimination. Bush, 194 F. Supp. 3d at 587–88.

Specifically, the district court determined that Bush is not “otherwise qualified to perform the

essential functions” of his prior chef manager job because: (i) the job requires him to be able to

lift up to fifty pounds; and (ii) he is incapable of performing that sort of heavy lifting. Id.
We agree with the district court that there is no genuine dispute as to whether Bush can perform

the essential functions of his prior position, with or without accommodations.

In order to determine whether Bush could meet the essential functions of the chef

manager position, we must first determine what those essential functions are. EEOC regulations

define “essential functions” as “the fundamental job duties of the employment position the

individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). “A job function may be

considered essential because: (1) the position exists to perform that function; (2) there are a

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

distributed; or (3) the function is highly specialized so that the incumbent in the position is hired

for his or her expertise or ability to perform the particular function.” Keith v. County of Oakland,

703 F.3d 918, 925 (6th Cir. 2013). “Factors to consider when determining whether a job
function is essential to the position include: (1) the employer’s judgment; (2) the written job

description; (3) the amount of time spent performing the function; (4) the consequences of not

requiring performance of the function; (5) the work experience of past incumbents of the

position; and (6) the current work experience of incumbents in similar jobs.” Id. at 925–26.

The written job description for Compass Group’s chef manager position states that while

“performing the duties of this job, the employee is regularly required to stand; use hands to

finger, handle, or feel; talk or hear; and taste or smell. The employee frequently is required to

walk, sit, and reach with hands and arms. The employee must frequently lift and/or move up to

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10 pounds.” (R. 30-1, PageID # 758.) Under the ADA, this description “shall be considered

evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). However, the written job

description is “not dispositive.” Rorrer v. City of Stow, 743 F.3d 1025, 1039 (6th Cir. 2014).

Rather, “the determination of whether physical qualifications are essential functions of a job

requires the court to engage in a highly fact-specific inquiry” and must “reflect the actual

functioning and circumstances of the particular enterprise involved.” Hall v. U.S. Postal Serv.,

857 F.2d 1073, 1079 (6th Cir. 1988) (emphasis in original).

Ordinarily, the question of whether a job function is essential “is a question of fact that is
typically not suitable for resolution on a motion for summary judgment.” Keith, 703 F.3d at 926.

Thus, we will not grant summary judgment when the “evidence on the issue is ‘mixed.’” Rorrer,

743 F.3d at 1039 (quoting Feldman v. Olin Corp., 692 F.3d 748, 755 (7th Cir. 2012)).

Here, however, the record is not “mixed”—uncontroverted evidence shows that lifting up

to fifty pounds was an essential part of Bush’s job duties. During his deposition, Bush confirmed

that the written job description did not accurately reflect his actual job duties. Specifically, when

asked about the description’s statement that candidates needed to be able to lift up to ten pounds,

Bush stated that he “was lifting and moving quite a lot more than that.” (R. 30-1, PageID # 735.)

Bush confirmed that he was required to move cases of meat and fifty-pound bags of potatoes and

sugar. (Id.) Moreover, Bush stated he was lifting heavy weights “for quite a bit of my

employment” because he would have to assume the duties of less senior cooks when they did not
show up for work. (Id.) When asked if lifting heavy weights “was essential” to his job, Bush

responded “Yes. Yes.” (Id.)

Further, in Bush’s post-deposition affidavit, Bush confirmed that his “actual job duties

were different from those in the written description” in that “[w]hen shipments of stock arrived

during service hours and all other employees were working/prepping their stations it was up to

me to put away stock in its proper area as quickly as possible to maintain food and kitchen

safety. These items were most often bulk packaged and heavy such as 50lbs potatoes, 50lbs

sugar, 50lbs flour, 35lb cases of #10 canned products, 30lbs bag in box beverage products etc.”

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(R. 30-3, PageID # 803.) Bush also stated that when “performing entree multi course catering I

would often have to carry and move tables and chairs weighing well above 10lbs. I had to

prepare and carry chaffers of food, move and set up service stations, and man carving stations

which involved lifting and carrying whole muscle meats and 30+ lb cases of prime rib, turkeys,

and so on. I would also have to often tear everything down as well.” (Id. PageID # 803–04.)

Finally, Bush acknowledged that he “understood that both Kentucky Farm Bureau and Bill Tardy

expected me to lift up to fifty pounds while cooking food and running catering events.” (Id.

PageID # 804.)
In arguing that there is an issue of material fact regarding whether heavy lifting was an

essential part of his job duties, Bush points to sections of Tardy’s deposition testimony where

Tardy explains that the chef manager position is mostly a supervisory role, and that most of the

chef manager’s physical duties can be delegated to subordinates. But Tardy’s statements do not

contradict Bush’s representations that heavy lifting was a regular and essential part of his job.

Rather, they are consistent with Bush’s representations that he would have to perform heavy

lifting when one of his subordinates missed work, or when catering events. We hold that no

reasonable jury could find that heavy lifting was an inessential part of the chef manager job when

Bush himself repeatedly admitted that it was essential.2

Accordingly, we must determine whether there is a genuine factual dispute as to whether

Bush could perform the essential functions of the chef manager position—including lifting up to

fifty pounds—with or without reasonable accommodations. Demyanovich, 747 F.3d at 433. The

record is clear that he could not perform these functions.

2
Bush cites Hall v. United States Postal Service to bolster his argument that a jury trial is
needed to determine whether lifting up to fifty pounds was an essential part of Bush’s job, but
Hall is easily distinguishable. In that case, the plaintiff was not placed in a clerk position
because he could not lift up to seventy pounds, as required by the written job description. Hall,
857 F.2d at 1075. But the plaintiff testified that he had never been required to do any heavy
lifting as a clerk, and the employer’s only evidence of the seventy-pound requirement was the
job description; thus there was a genuine fact issue as to whether such lifting was an essential
part of the job. Id. at 1075, 1079. By contrast, Bush’s own deposition testimony clearly
establishes that lifting up fifty pounds was a regular and essential feature of his work.
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During his deposition, Bush consistently and repeatedly affirmed that he could not handle

the physical demands of the chef manager position, even with accommodations. The following

is a particularly illuminating passage that represents the gist of Bush’s testimony:
Q. Back condition?
A. Yeah.

Q. That the company somehow fired you from employment because of
discrimination because of that disability?

A. Yes.

Q. And that’s because even though you couldn’t go back and do the chef
manager job because of the physical requirements that you think they
should have hired you for one of these ten jobs that you applied for?

A. Yes.

Q. But going back and doing the chef manager job was not something you
could do?

A. No.

Q. There’s nothing that they could do to help you do all those physical
requirements either?

A. No.
(R. 26-2, PageID # 267 (emphasis added).)

However, in his post-deposition affidavit, Bush walked back his deposition testimony by

stating that at all times he “was able to perform the duties of a chef manager, as described in the

written job description,” even though he went on to state that the written job description did not
accurately describe the weight lifting requirements for the position. (R. 30-3, PageID # 803.)

Bush further stated that he “could have continued to work as a chef manager at Kentucky Farm

Bureau if [he] did not have to lift items heavier than 10 pounds.” (Id. PageID # 804.)

Bush argues that there is a genuine dispute as to whether he can perform the duties of a

chef manager because: (i) his post-deposition affidavit states that he could perform those duties

as long as Compass Group provided him with additional laborers to help with the heavy lifting;

and (ii) in his deposition, Bush testified that he actually performed the heavy-lifting aspects of

his job—albeit with pain—after his back condition manifested. The district court refused to

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consider his post-deposition affidavit because it contradicted his deposition testimony, and

further found that there was no dispute that Bush could not function as a chef manager because

he repeatedly said as much during his deposition.

The district court’s refusal to consider the affidavit was proper. We have long held that a

“party may not create a factual issue by filing an affidavit, after a motion for summary judgment

has been made, which contradicts her earlier deposition testimony.” Reid v. Sears, Roebuck

& Co., 790 F.2d 453, 460 (6th Cir. 1986). In determining whether to credit a post-deposition

affidavit, we consider whether the affidavit directly contradicts prior deposition testimony.
Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006). “A directly

contradictory affidavit should be stricken unless the party opposing summary judgment provides

a persuasive justification for the contradiction.” Id. “If, on the other hand, there is no direct

contradiction, then the district court should not strike or disregard that affidavit unless the court

determines that the affidavit ‘constitutes an attempt to create a sham fact issue.’” Id. (quoting

Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). In determining whether the affidavit is

a sham, we consider a “nonexhaustive list of factors” including “whether the affiant was cross-

examined during his earlier testimony, whether the affiant had access to the pertinent evidence at

the time of his earlier testimony or whether the affidavit was based on newly discovered

evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts to

explain.” Id. at 908–09 (quoting Franks, 796 F.2d at 1237).
Here, Bush’s affidavit directly contradicted his deposition testimony in a key way.

During his deposition, Bush answered “No” when asked whether any accommodations would

allow him to perform the physical duties of his chef manager position. (R. 26-2, PageID # 267.)

In his affidavit, Bush stated that he “could have continued to work as a chef manager” if

Compass Group provided him an “accommodation” by hiring “dependable labor to do the lifting

and carrying for me.” (R. 30-3, PageID # 804). These statements directly contradict one

another, and therefore not only did the district court properly decline to consider the

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contradictory statements in the affidavit, the district court would have been justified in striking

the affidavit entirely. Aerel, 448 F.3d at 908; Reid, 790 F.2d at 460.

Further, Bush’s testimony during his deposition that he had performed heavy lifting with

pain after his back injury, and therefore could have continued in the chef manager role, does not

create a genuine factual dispute. As Compass Group rightly argues, the fact that Bush was able

to continue his job duties for a time after his back problems started does not contradict the

evidence in the record that Bush’s back injury eventually worsened, and by the time he was

terminated, his doctor had restricted him to lifting no more than ten pounds.
Moreover, at best, Bush has demonstrated that his deposition testimony was internally

contradictory—he repeatedly stated that he could not perform the physical requirements of his

job, but implied at other times that he had met those requirements even after his back condition

arose. Courts have repeatedly held that a plaintiff’s internally contradictory deposition testimony

cannot, by itself, create a genuine dispute of material fact. See, e.g., Pina v. Children’s Place,

740 F.3d 785, 799 (1st Cir. 2014) (holding that summary judgment was appropriate where

plaintiff’s admissions in deposition undermined her claims); Jeffreys v. City of New York,

426 F.3d 549, 555 (2d Cir. 2005) (affirming summary judgment where plaintiff’s deposition

testimony was “replete with inconsistencies” (citation omitted)); United States v. 1980 Red

Ferrari, 827 F.2d 477, 480 n.3 (9th Cir. 1987) (affirming summary judgment where only

evidence was plaintiff’s “incredible and contradictory” deposition testimony); Hayes v. Norfolk
S. Corp., 25 F. App’x 308, 314 (6th Cir. 2001) (holding that appellant’s “contradictory” and

“confused” testimony was insufficient to create fact issue). Although the non-moving party is

entitled to all reasonable inferences when evaluating a summary judgment motion, when a

plaintiff’s claims are only supported by his “own contradictory and incomplete testimony . . . no

reasonable person would undertake the suspension of disbelief necessary to credit the allegations

made in his complaint.” Jeffreys, 426 F.3d at 555 (citation and alteration omitted). Because

Bush’s own deposition testimony consistently and repeatedly proclaimed that he could not

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function as a chef manager, even with accommodations, we hold that no reasonable jury could

find in Bush’s favor on his disability discrimination claims.

B. Reasonableness of Accommodations

Although Bush’s failure to make a prima facie showing of disability discrimination is

fatal to his claim, we note that even if Bush had made such a showing, his claims would still fail

because the accommodations he requested from Compass Group were not reasonable.

“A disabled employee who claims that he or she is otherwise qualified with a reasonable

accommodation ‘bears the 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) (quoting Cassidy v. Detroit Edison Co., 138 F.3d 629, 633–34 (6th Cir. 1998)).

In this suit, Bush has proposed two potential accommodations: (i) Compass Group could have

hired additional staff to perform all of Bush’s heavy physical labor for him; or (ii) Compass

Group could have transferred him to one of the ten positions within the organization that he

applied for.

Neither of these accommodations are objectively reasonable. We have consistently held

that a proposed accommodation requesting that an employer remove “an ‘essential function’

from the position . . . is per se unreasonable.” E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 761

(6th Cir. 2015) (quoting Brickers v. Cleveland Bd. of Educ., 145 F.3d 846, 850 (6th Cir. 1998));

see also 29 C.F.R. Part 1630.2(o) App’x (“An employer . . . is not required to reallocate essential
functions.”). As explained earlier, lifting more than fifty pounds is an essential function of a

chef manager; accordingly, it is per se unreasonable for Bush to request that Compass Group

assign these aspects of his job to someone else. Ford, 782 F.3d at 761.

Moreover, Bush’s request to be re-assigned to the vacant positions within Compass

Group that he applied for was also unreasonable. We have held that: (i) the “ADA does not

require an employer to offer an employee a promotion as a reasonable accommodation;” and

(ii) an employer is not “required to waive legitimate, non-discriminatory employment policies

. . . in order to accommodate a disabled employee.” Hedrick, 355 F.3d at 457. All of the

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positions Bush applied for except one would have constituted promotions over his chef manager

position.3 And Bush disqualified himself from the one lateral position he applied for because he

violated company policy by failing to inform Tardy that he was requesting a transfer.

Accordingly, because re-assigning Bush to any of the positions he sought would have required

Compass Group to promote him or waive its non-discriminatory transfer policy, this requested

accommodation was unreasonable as a matter of law.4 Id.

III. FMLA Claim

We have explained the framework governing FMLA claims as follows:

The FMLA enables employees covered by the Act to take up to twelve weeks of
leave per year for various purposes specified in the statute, including the
employee’s own “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). A “serious health condition” is defined as “an illness, injury,
impairment, or physical or mental condition that involves (A) inpatient care in a
hospital, hospice, or residential medical care facility; or (B) continuing treatment
by a health care provider.” 29 U.S.C. § 2611(11). At the expiration of the
employee’s leave period, she must be reinstated to her position or to a position
equivalent in pay, benefits, and other terms and conditions of employment.
29 U.S.C. § 2614(a)(1).
Bryson v. Regis Corp., 498 F.3d 561, 569–70 (6th Cir. 2007).

Two distinct theories for recovery on FMLA claims exist. The “entitlement” or
“interference” theory arises from § 2615(a)(1), which states that “[i]t shall be

3
In late 2012, Compass Group’s HR staff discussed the possibility with Bush of having
him serve as an ad hoc auditor for one of Eurest’s accounts until he could secure permanent
employment. At oral argument, Bush’s counsel argued that Compass Group should have
accommodated Bush by solidifying this hypothetical auditor role as a new, full-time position and
offering Bush that job. We reject this argument. The ADA “does not require employers ‘to
create new jobs . . . in order to accommodate a disabled individual.’” Kleiber v. Honda of Am.
Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (quoting Burns v. Coca-Cola Enters., Inc., 222 F.3d
247, 257 (6th Cir. 2000)).
4
Aka v. Washington Hospital Center, 156 F.3d 1284, 1300–01 (D.C. Cir. 1998) (en
banc), does not support Bush’s argument that Compass Group violated the ADA by failing to
give him one of the ten jobs he applied for. Aka merely held that a plaintiff has statutory
standing to pursue an ADA claim based on an employer’s failure to reassign the plaintiff to a
vacant position as long as the plaintiff can perform the essential duties of the new job with
reasonable accommodations. Id. It does not hold that employers are required to place disabled
employees in positions they are not qualified for, or that would constitute promotions; thus, Bush
cannot benefit from Aka’s reasoning.
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unlawful for any employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided in this subchapter,” and from
§ 2614(a)(1), which provides that “any eligible employee who takes leave . . .
shall be entitled, on return from such leave (A) to be restored by the employer to
the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position.” The “retaliation” or
“discrimination” theory arises from § 2615(a)(2), which provides that “[i]t shall
be unlawful for any employer to discharge or in any other manner discriminate
against any individual for opposing any practice made unlawful by this
subchapter.”
Arban v. W. Pub. Corp., 345 F.3d 390, 400–01 (6th Cir. 2003).

Bush is pursuing an FMLA retaliation theory based solely on circumstantial evidence.

“Absent direct evidence of unlawful conduct, FMLA-retaliation claims are evaluated according

to the tripartite burden-shifting framework announced in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).” Bryson, 498 F.3d at 570.

A plaintiff “can make out a prima facie case of discrimination by showing that (1) she

availed herself of a protected right under the FMLA by notifying [the employer] of her intent to

take leave, (2) she suffered an adverse employment action, and (3) that there was a causal

connection between the exercise of her rights under the FMLA and the adverse employment
action.” Edgar v. JAC Prods., Inc., 443 F.3d 501, 508 (6th Cir. 2006).

Compass Group conceded before the district court that Bush has made out the first two

elements of a prima facie FMLA retaliation claim. Bush, 194 F. Supp. 3d at 589. However, the

district court determined that Bush failed to create a genuine dispute as to whether his

termination was causally related to his FMLA leave because “the wheels were in motion for [his]
termination before he left on October 25, 2012.” Id. We agree.

The sole evidence that Bush points to in arguing that his termination was causally related

to his FMLA leave is that he was laid off on January 10, 2013 (backdated to December 10,

2012)—about one month after his leave expired on December 7, 2012. This “Circuit has

embraced the premise that in certain distinct cases where the temporal proximity between the

protected activity and the adverse employment action is acutely near in time, that close proximity

is deemed indirect evidence such as to permit an inference of retaliation to arise.” DiCarlo v.

Potter, 358 F.3d 408, 421 (6th Cir. 2004), abrogated on other grounds by Gross v. FBL Fin.

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Servs., Inc., 557 U.S. 167, 180 (2009); Krumheuer v. GAB Robins N.A., Inc., 484 F. App’x 1, 5

(6th Cir. 2012) (“[W]e have concluded that temporal proximity alone is sufficient to establish a

prima facie case of FMLA retaliation.”).5

However, contrary to Bush’s implicit assumption, the relevant timeframe for us to

consider in determining whether there was a causal connection between the plaintiff’s FMLA

leave and the adverse employment action is the “time after an employer learns of a protected

activity,” not the time after the plaintiff’s FMLA leave expires. See, e.g., Mickey v. Zeidler Tool

& Die Co., 516 F.3d 516, 525 (6th Cir. 2008); Krumheuer, 484 F. App’x at 5. The record shows

that Compass Group learned of Bush’s FMLA leave on October 29, 2012—approximately two-

and-one-half months before he was terminated. The “more time that elapses between the

protected activity and the adverse employment action, the more the plaintiff must supplement his

claim with ‘other evidence of retaliatory conduct to establish causality.’” Vereecke v. Huron

Valley Sch. Dist., 609 F.3d 392, 400 (6th Cir. 2010) (quoting Mickey, 516 F.3d at 524–25).

5
Curiously, although temporal proximity evidence is sufficient to establish a prima facie
case of FMLA retaliation, DiCarlo, 358 F.3d at 421, we have held that “temporal proximity is
insufficient in and of itself to establish that the employer’s nondiscriminatory reason for
discharging an employee was in fact pretextual.” Skrjanc v. Great Lakes Power Serv. Co.,
272 F.3d 309, 317 (6th Cir. 2001); see also Krumheuer, 484 F. App’x at 5 (explaining this
Circuit’s inconsistent approach regarding the sufficiency of temporal proximity in FMLA
retaliation claims). This is an oddity in our case law; ordinarily, a prima facie showing of
discrimination under the McDonnell-Douglas framework “is sufficient to support an inference of
discrimination at trial.” Chen v. Dow Chem. Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) (“[B]ecause a prima facie
case and sufficient evidence to reject the employer’s explanation may permit a finding of
liability, the Court of Appeals erred in proceeding from the premise that a plaintiff must always
introduce additional, independent evidence of discrimination.”). Thus, DiCarlo and Skrjanc
cannot both be correct; either temporal proximity evidence is sufficient to both establish a prima
facie showing of FMLA retaliation, and rebut an employer’s proffered non-discriminatory
reasons for the adverse employment action, or it is insufficient to do either. We need not resolve
this conflict now, however, because the alleged temporal proximity between Bush’s FMLA leave
and his termination does not establish a prima facie showing of retaliation when viewed against
the record as a whole.
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In this case, Bush put forward no other evidence to support his FMLA retaliation claim,

and the uncontested evidence in the record overwhelmingly undermines his claim. Bush himself

summarized the fatal flaw with his FMLA retaliation theory in his appellate briefing:

Much of the evidence indicates that Compass Group terminated Bush to please its
client KFB and to make sure it could keep charging KFB for services. It has also
claimed that Bush refused to work for Tardy and therefore Bush himself chose to
be terminated.
(App. R. 20 at 51 (emphasis added).) This is an accurate summary of the record. On October

25, 2012, after Bush left work without notice in the middle of the “chef test” for his potential

replacement, Lisa Daniszewski—a member of Compass Group’s human resources staff—
acknowledged that “the client [KFB] [was] insistent on [Bush’s] removal and will not further

discuss,” and laid out a plan for transitioning Bush out of the chef manager position. (R. 30-6,

PageID # 828.) However, to put it bluntly, it was not illegal for Compass Group to fire Bush to

please a client.6 Rather, Bush was required to put forward evidence showing that Compass

Group fired him for exercising his FMLA rights, and his failure to do so is fatal to his claims.

Moreover, the record shows that Compass Group had decided to terminate Bush’s

employment before he even notified Compass Group of his intent to take FMLA leave. On

October 25, 2012, Daniszewski stated that Compass Group’s plan was to send Bush the

paperwork for a leave of absence in case he wanted to take such leave, “and have him help out at

other accounts while he continues to look for work internally and externally. If this continued on

for more than 6-8 weeks, [Compass Group] would look at enhanced severance with a release of

claims.” (Id.)

6
Federal civil rights law generally does not interfere with an employer’s ability to
terminate employees for legitimate business reasons, such as the desire to retain a client, as long
as the termination was not substantially motivated by improper discrimination. Thus, a business
may terminate an employee because he has a poor working relationship with a client, but not
because the client refuses to work with persons of the employee’s race. In this case, the record
shows that Bush was fired because KFB no longer thought him reliable, and Compass Group did
not have a position for him elsewhere—not because he took FMLA leave.
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In other words, uncontested record evidence shows that on October 25, 2012, Compass

Group was planning on terminating Bush’s employment as a chef manager in six-to-eight weeks

if he did not secure another position internally or externally. Compass Group did not learn of

Bush’s intent to take FMLA leave until October 29, 2012. Therefore, the record clearly rebuts

any inference that Bush was fired in retaliation for taking FMLA leave, because Compass Group

had decided to let him go four days prior to learning that he would take such leave. Accordingly,

we hold that the district court did not err in granting summary judgment against Bush’s FMLA

retaliation claim.
IV. KWCA Claim

The Kentucky Workers’ Compensation Act provides that no “employee shall be harassed,

coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a

lawful claim” for workers’ compensation benefits. Ky. Rev. Stat. § 342.197(1). In KWCA cases

“where there is no direct evidence of retaliation, as is the case here, the burden of production and

persuasion follows the familiar McDonnell Douglas framework.” Ky. Dep’t of Corrs. v.

McCullough, 123 S.W.3d 130, 133–34 (Ky. 2003); Dollar Gen. Partners v. Upchurch,

214 S.W.3d 910, 915–917 (Ky. Ct. App. 2006).

A plaintiff can establish a prima facie case of workers’ compensation discrimination

through “proof that: (1) he engaged in a protected activity; (2) the defendant knew that the

plaintiff had done so; (3) adverse employment action was taken; and (4) that there was a causal
connection between the protected activity and the adverse employment action.” Dollar Gen.,

214 S.W.3d at 915. The parties agree that Bush has satisfied the first three elements, but the

district court found that there was no genuine issue as to whether Bush’s termination was caused

by his workers’ compensation claims. Bush, 194 F. Supp. 3d at 587.

“The plaintiff is not required to demonstrate that the sole or even the primary reason for

the termination was related to the protected activity but only that its pursuit was a ‘substantial

and motivating factor’ in the decision to terminate.” Dollar Gen., 214 S.W.3d at 915. “In most

cases, this requires proof that (1) the decision maker responsible for making the adverse decision

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was aware of the protected activity at the time that the adverse decision was made, and (2) there

is a close temporal relationship between the protected activity and the adverse action.” Brooks v.

Lexington-Fayette Urban Cty. Hous. Auth., 132 S.W.3d 790, 804 (Ky. 2004). “The sooner

adverse action is taken after the protected activity, the stronger the implication that the protected

activity caused the adverse action, particularly if no legitimate reason for the adverse action is

evident.” McCullough, 123 S.W.3d at 135. In determining whether temporal proximity between

the plaintiff’s benefits claim and his firing is sufficient to sustain a retaliation claim, we must

“view the time between the two events in the context of the entire circumstances.” Dollar Gen.,
214 S.W.3d at 916.

Bush’s sole evidence of KWCA retaliation is the alleged temporal proximity between the

instances where he reported his workplace injury to Compass Group, and his firing. Bush

reported workplace injuries on May 11, May 31, August 3, and August 16, 2012, and was fired

on January 10, 2013.7 Thus, he was fired between four and eight months after he made each

respective injury report.

This temporal proximity does not raise a triable fact issue as to whether Bush was

discharged for pursuing workers’ compensation claims for two reasons. First, under Kentucky

law, temporal proximity between a worker’s protected activity and an adverse employment

action is generally insufficient to sustain a retaliation claim where, as here, the plaintiff “does not

point to any other facts or circumstances which would support an inference that [the employer]

retaliated against [the plaintiff] based on [the workers’ compensation] claim.” See Collins v.

Sapphire Coal Co., No. 2010–CA–000690–MR, 2011 WL 4633099, at *3 (Ky. Ct. App. Oct. 7,

2011) (affirming grant of summary judgment on workers’ compensation retaliation claim where

7
Compass Group made a formal report of a workplace injury, at Bush’s request, on
August 13, 2012. Although it does not appear that Bush ever actually filed a workers’
compensation claim, Kentucky law does not require the actual filing of a claim as long as the
plaintiff was “pursuing a lawful claim for workers’ compensation benefits.” Overnite Transp.
Co. v. Gaddis, 793 S.W.2d 129, 132 (Ky. Ct. App. 1990). The parties agree that Bush was
engaging in protected activity when he reported his workplace injury.
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 No. 16-6258

plaintiff pointed to no other evidence of retaliation other than three month gap between claim

and firing).

Second, Bush has not shown that his workers’ compensation claims were a “substantial

and motivating factor” in his discharge, because the record provides a plethora of evidence that

Compass Group fired him for legitimate reasons. Dollar Gen., 214 S.W.3d at 915. As discussed

earlier, Bush admitted that he could not perform the essential job duties of a chef manager. See

Henderson v. Ardco, Inc., 247 F.3d 645, 654 (6th Cir. 2001) (affirming summary judgment on

Kentucky workers’ compensation retaliation claim where record evidence showed that plaintiff
would have been fired because of her post-injury physical limitations regardless of workers’

compensation claim); Southerland v. Hardaway Mgmt. Co., Inc., 41 F.3d 250, 256 (6th Cir.

1994) (affirming summary judgment on Kentucky workers’ compensation retaliation claim

where “the evidence support[ed] the defendant’s assertion that the plaintiff was discharged solely

because of her inability to perform her job”). And moreover, Compass Group’s decision to

terminate Bush was cemented when he walked off his job without permission, and Compass

Group’s client (KFB) demanded his removal. See Wells v. Huish Detergents, Inc., 19 F. App’x

168, 178 (6th Cir. 2001) (affirming summary judgment on Kentucky workers’ compensation

retaliation claim where the “evidence clearly demonstrate[d] that [the plaintiff] would have been

discharged regardless of his injury” because “he violated Company policy”). The relatively long

gap between Bush’s workers’ compensation claims and his termination is simply not enough to
support a viable retaliation claim in light of the unrebutted record evidence showing that he was

fired for nondiscriminatory reasons.

CONCLUSION

For the foregoing reasons, we hold that the district court correctly granted summary

judgment against Bush’s disability discrimination, FMLA retaliation, and workers’

compensation retaliation claims. Accordingly, we AFFIRM the district court’s judgment.

20