UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JULIE BARLIA,

Plaintiff,

Case No. 15-10243

v. Hon. Gerald E. Rosen

MWI VETERINARY SUPPLY, INC.,

Defendant.

_________________________________/

OPINION AND ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on January 24, 2017 

PRESENT: Honorable Gerald E. Rosen

United States District Judge

I. INTRODUCTION

Plaintiff Julie Barlia commenced this action in this Court on January 21,

2015, alleging that her former employer, Defendant MWI Veterinary Supply, Inc.,1

violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.,

by discharging her due to her disability and retaliating against her when she

requested an accommodation of this disability. This Court’s subject matter

1Defendant states that the correct name of its business is MWI Veterinary Supply

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jurisdiction rests upon Plaintiff’s assertion of claims arising under the federal

ADA. See 28 U.S.C. § 1331.

By motion filed on April 4, 2016, Defendant now seeks an award of

summary judgment in its favor on each of Plaintiff’s ADA claims. In support of

this motion, Defendant first contends that Plaintiff has failed as a matter of law to

establish one or more elements of a prima facie case of disability discrimination or

retaliation. Next, even assuming that Plaintiff could establish this prima facie

case, Defendant argues that she cannot show that her employer’s legitimate

reasons for terminating her employment were a pretext for unlawful discrimination

or retaliation.

Defendant’s motion has been fully briefed by the parties. Having reviewed

the briefs in support of and in opposition to Defendant’s motion, as well as the

accompanying exhibits and the remainder of the record, the Court finds that the

relevant allegations, facts, and legal issues are sufficiently presented in these

written submissions, and that oral argument would not aid the decisional process. 

Accordingly, the Court will resolve Defendant’s motion “on the briefs.” See Local

Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and

order sets forth the Court’s rulings on this motion.

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II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Parties

Defendant MWI Veterinary Supply, Inc. is a distributor of animal health

products. Plaintiff Julie Barlia began her employment with Defendant on October

27, 2008 as an outside sales representative (“OSR”) assigned to a sales territory in

southeastern Michigan. Throughout her employment, Plaintiff reported to Terry

Walsh, Defendant’s Great Lakes Regional Sales Manager, and Mr. Walsh, in turn,

reported to Defendant’s Vice President of Eastern Sales, Spencer Breithaupt.

B. Plaintiff’s Job Performance

As an OSR, Plaintiff was responsible for promoting and selling animal

health products to veterinary care providers in her sales territory. (See

Defendant’s Motion, Ex. 2, Plaintiff’s Dep. at 108.) Starting in at least 2013, and

perhaps in 2012, Plaintiff was expected to achieve at least 95 percent of her sales

goal each month. (See id. at 106.)

In fiscal year (“FY”) 2013,

2

 Plaintiff’s sales fell below the 95-percent target

for three consecutive months — January, February, and March of 2013. (See

Defendant’s Motion, Ex. 7, Walsh 4/1/2016 Decl. at ¶ 38; Plaintiff’s Response,

2Defendant’s fiscal year runs from October 1 to September 30 of the following

year. Thus, Defendant’s FY 2013 spanned from October 2012 to September 2013, and

FY 2014 ran from October 2013 to September 2014. 

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Ex. 11, FY 2013 Sales Results.) During this three-month period, Defendant

realigned its Great Lakes Region’s sales territories to create a territory for a newlyhired OSR, Jeffrey Kloosterman, and some of Plaintiff’s accounts were taken from

her in this realignment. (See Plaintiff’s Dep. at 101, 103-04, 122-25; see also

Plaintiff’s Response, Ex. 13.)3 To account for these changes, Plaintiff’s monthly

and annual sales goals were reduced by five percent, and she was given a “bridge”

payment to help her through this transitional period. (See Plaintiff’s Dep. at 125;

see also Defendant’s Motion, Ex. 6, Walsh Dep. at 54, 73-74; Ex. 8, Breithaupt

Dep. at 19-21.)

Despite the adjustment to her sales goals, Plaintiff again failed to achieve

her 95-percent target in April, May, June, and September of 2013, for a total of

seven out of twelve months in FY 2013 below the 95-percent goal. (See Walsh

4/1/2016 Decl. at ¶ 38; Plaintiff’s Response, Ex. 11, FY 2013 Sales Results.) In a

fiscal year-end performance review conducted in September of 2013, Plaintiff

received an average rating of 1.87 — just below the rating of 2 for meeting

expectations — in the quantitative portion of her evaluation, but her average

3Plaintiff testified that her top two accounts and seven of her top 25 accounts were

given to Mr. Kloosterman in this realignment. (See Plaintiff’s Dep. at 100.) Although

Plaintiff also was given accounts in the realignment, she recalled that only two of these

accounts were doing any business with Defendant at the time. (See id. at 101, 125.)

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ratings were 2.5 and 2.4, respectively, in the areas of core values and technical

skills. (See Defendant’s Motion, Ex. 11, FY 2013 Performance Review.)

In FY 2014, Plaintiff continued to fall short of her monthly sales goals,

failing to meet her 95-percent target each month from October 2013 through

February 2014. (See Walsh 4/1/2016 Decl. at ¶ 38; Plaintiff’s Response, Ex. 11,

FY 2014 Sales Results.) For a two-day period in mid-December of 2013, Mr.

Walsh rode along with Plaintiff on her sales calls,

4

 and he then sent her a

December 19, 2013 e-mail summarizing the discussion during this “ride-with.” 

(See Defendant’s Motion, Ex. 13, Walsh 12/19/2013 E-mail; see also Plaintiff’s

Dep. at 137-38.) In this e-mail, Mr. Walsh reminded Plaintiff of Defendant’s 95-

percent sales target and noted that her territory was “currently at 83% of [her] FY

[20]14 goal,” but he acknowledged that she was doing a “great job” with one of

the product lines she was marketing and selling. (Walsh 12/19/2013 E-mail.) Mr.

Walsh proposed strategies for Plaintiff to “regain [her] momentum,” and stated

that “[w]e will revisit your progress toward achieving your goal at the end of

March, with expectations of meeting 95% of goal.” (Id.)

4Plaintiff testified that she experienced a dizzy spell while Mr. Walsh accompanied

her on her sales calls, and that Mr. Walsh assumed the driving duties for the remainder of

that day. (See Plaintiff’s Dep. at 141.) According to Plaintiff, she and Mr. Walsh had

discussions over the years about adrenal and thyroid issues and hormonal imbalances, so

that he was aware in December of 2013 of the symptoms that Plaintiff experienced due to

these health issues. (See id. at 141-43.) 

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On January 29, 2014, Plaintiff sent an e-mail to Defendant’s human

resources director, Debby Ball, asking to be excused from attending an out-oftown national sales meeting (“NSM”) that was scheduled for the following week. 

(See Defendant’s Motion, Ex. 3, Plaintiff’s 1/29/2014 E-mail.) In support of this

request, Plaintiff stated that she had met with her doctor “regarding some

symptoms that I have been experiencing,” and that her doctor had

“recommend[ed] that I do not travel at this time.” (Id.) Plaintiff also provided a

brief note from her physician, stating that Plaintiff had “experienced symptoms

consistent with thyroid and hormonal imbalance” and had “lost weight[] consistent

with these issues,” and asking that “she not fly in an airplane or take trips outside

this geographic area” while she was still “being evaluated and treated.” 

(Defendant’s Motion, Ex. 3, 1/28/2014 Doctor’s Note.) On January 30, 2014, Ms.

Ball advised Mr. Walsh that “[w]e have received a note from [Plaintiff’s] medical

provider indicating that she cannot currently travel outside of her sales region,”

and that she therefore “w[ould] not be attending the NSM.” (Defendant’s Motion,

Ex. 16, Ball 1/30/2014 E-mail.)

5

5Within a month or two thereafter, Plaintiff traveled to Jamaica. Although Plaintiff

could not recall being specifically cleared to travel, she testified that her doctor “wasn’t as

concerned for me traveling” by that time, partly because her husband was accompanying

her on the trip. (Plaintiff’s Dep. at 150.) 

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Plaintiff again failed to achieve her 95-percent sales target in April of 2014,

meaning that she had met this goal in only one of the first seven months of FY

2014, and her overall average during this seven-month period was 86.5 percent. 

(See Walsh 4/1/2016 Decl. at ¶¶ 24, 38.) Thus, at some point in April of 2014,

Mr. Walsh spoke to Defendant’s director of human resources, Ms. Ball, regarding

Plaintiff’s repeated failure to meet her sales goals, and he decided to implement a

performance improvement plan (“PIP”) for Plaintiff. (See id. at ¶ 26; see also

Defendant’s Motion, Ex. 14, Ball Dep. at 25.)

On May 9, 2014, Plaintiff was advised that she was being placed on a PIP,

and a copy of the plan was sent to her by e-mail. (See Plaintiff’s Dep. at 155-57,

210-11; see also Defendant’s Motion, Ex. 12, Performance Improvement Plan.) 

The PIP stated that Plaintiff was not meeting Defendant’s sales expectations or the

company’s expectations regarding the “frequency and quality of [her]

communication” with her supervisor, Mr. Walsh. (PIP at 1.) The PIP then

described the improvements and corrections expected from Plaintiff, including (i)

that “[e]ffective immediately, [she] must maintain an average of 95% of her

monthly goal for the months of May, June and July 2014,” (ii) that by May 31,

2014, Plaintiff would “provide [Mr. Walsh] with a plan of action on how she will

improve her sales of” a particular piece of equipment, “so that she can ensure that

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she meets the requirement of one sale per quarter,” and (iii) that “[e]ffective

immediately, no later than noon each Monday, [Plaintiff] is to send [Mr. Walsh] a

‘Route Activity Sheet’ or call plan detailing her activities from the previous

week.” (Id. at 2.) Finally, Plaintiff was cautioned that if she failed to meet the

objectives set forth in the PIP, “additional discipline up to and including

termination of employment will occur.” (Id.) On May 14, 2014, Plaintiff returned

a signed copy of the PIP to a human resources representative, indicating that she

“acknowledge[d] receipt” but “d[id] not agree this action is justified.” (Id.)

C. Plaintiff’s Termination in a Company-Wide Workforce Reduction

On or around May 14, 2014, Ms. Ball generated a list of Defendant’s

employees and their annual salaries, in order to assist a “leadership team” of

Defendant’s senior-level executives in “examining the impact of potential

expense-reduction measures, including a potential workforce reduction.” 

(Defendant’s Motion, Ex. 15, Ball 4/3/2016 Decl. at ¶¶ 11-12; see also Ball Dep.

at 52-53, 56, 58-59.) Defendant’s president and chief executive officer, Jim

Cleary, then sent a company-wide e-mail on May 20, 2014, stating that the

company’s financial results for the most recent quarter fell short of expectations,

and that the company thus planned to “implement significant expense-reduction

measures.” (Defendant’s Motion, Ex. 22, Cleary 5/20/2014 E-mail.)

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In response to this call for cost-cutting measures, Defendant’s Vice

President of Eastern Sales, Spencer Breithaupt, held a May 27, 2014 conference

call with his regional sales managers, including Mr. Walsh, and asked each of

them to identify one or two individuals in his or her region who should be

considered for layoff in the event that Defendant elected to reduce its workforce. 

(See Walsh Dep. at 66-68, 75; Breithaupt Dep. at 99-102.) Mr. Walsh selected

Plaintiff as the individual to face a possible layoff, explaining that she was the

only employee in his region who was currently on a PIP, that she had “struggled

with her sales over the course of a year and a half,” and that she had “bec[o]me

disengaged from [her] position” following the realignment of her sales territory. 

(Walsh Dep. at 27-30.)

Mr. Breithaupt adopted this recommendation, and Plaintiff’s employment

was terminated on June 3, 2014. (See Walsh Dep. at 73; Breithaupt Dep. at 101-

02; Plaintiff’s Dep. at 165.) As stated by Mr. Cleary in a June 4, 2014 companywide e-mail, roughly five percent of Defendant’s employees were discharged in

the company’s workforce reduction, and Defendant also closed two of its

distribution centers. (Defendant’s Motion, Ex. 22, Cleary 6/4/2014 E-mail; see

also Ball 4/3/2016 Decl. at ¶ 15 (estimating that Defendant’s workforce was

reduced by approximately four percent).) According to Mr. Walsh, Plaintiff was

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not replaced and her former position was not posted following her termination. 

(See Walsh 4/1/2016 Decl. at ¶ 43.) Instead, an inside sales representative handled

the orders placed by phone from within Plaintiff’s sales territory, and a “specialty

sales representative, who covers multiple states, has visited [Plaintiff’s] former

customers, as necessary.” (Id.)

III. ANALYSIS

A. The Standards Governing Defendant’s Motion

Through the present motion, Defendant seeks an award of summary

judgment in its favor on Plaintiff’s federal ADA claims of disability discrimination

and retaliation. Under the pertinent Federal Rule, summary judgment is proper “if

the movant shows that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the

Supreme Court has explained, “the plain language of Rule 56[] mandates the entry

of summary judgment, after adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552 (1986).

In deciding a motion brought under Rule 56, the Court must view the

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evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp.,

434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on bare

allegations or denials, but instead must support a claim of disputed facts by “citing

to particular parts of materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations, stipulations . . . ,

admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). Moreover, any supporting or opposing affidavits “must be made on

personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the matters stated.” Fed. R.

Civ. P. 56(c)(4). Finally, “the mere existence of a scintilla of evidence that

supports the nonmoving party’s claims is insufficient to defeat summary

judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and

citation omitted).

B. Plaintiff Has Failed to Establish a Prima Facie Case of Disability

Discrimination Under the ADA, Nor Has She Shown that Defendant’s

Stated Reason for Her Discharge Is a Pretext for Unlawful

Discrimination.

In Count I of her complaint, Plaintiff alleges that Defendant discriminated

against her and terminated her employment “on the basis of [her] disability,” in

violation of 42 U.S.C. § 12112(a). In the absence of direct evidence of disability

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discrimination,

6

 this claim is governed by the familiar tripartite analytical

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93

S. Ct. 1817, 1824 (1973). See Ferrari v. Ford Motor Co., 826 F.3d 885, 891 (6th

Cir. 2016). To establish a prima facie case at the first stage of this analysis, a

plaintiff ordinarily must show (i) that she had a disability within the meaning of

the ADA, (ii) that she was otherwise qualified to perform the job she held prior to

her discharge, with or without reasonable accommodation, (iii) that she suffered

an adverse employment decision, (iv) that the defendant employer knew or had

reason to know of her disability, and (v) that she was replaced or her former

position remained open while the employer sought other applicants. See Ferrari,

826 F.3d at 891-92; Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011).

Where, as here, a plaintiff is discharged as part of a workforce reduction, the

Sixth Circuit has determined that the fifth and final element of the prima facie case

must be altered because the plaintiff “is not replaced.” Arthur v. American Showa,

Inc., No. 14-4145, 625 F. App’x 704, 707 (6th Cir. Aug. 14, 2015). “Instead, the

plaintiff must introduce additional direct, circumstantial, or statistical evidence

tending to indicate that the employer singled out the plaintiff for discharge for

impermissible reasons.” Arthur, 625 F. App’x at 707 (internal quotation marks

6Plaintiff does not claim to have produced any such direct evidence here.

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and citations omitted); see also Geiger v. Tower Automotive, 579 F.3d 614, 623

(6th Cir. 2009). A plaintiff may establish this element of her prima facie case by

“demonstrat[ing] that a comparable non-protected person was treated better.” 

Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir. 1998)

(internal quotation marks and citation omitted).

Once Plaintiff has established a prima facie case of disability

discrimination, Defendant bears the burden of offering a legitimate, nondiscriminatory explanation for its adverse employment decision. See Ferrari, 826

F.3d at 892. If it does so, Plaintiff then must show that Defendant’s proffered

explanation is a pretext for unlawful discrimination. 826 F.3d at 892.

1. Plaintiff Has Not Shown that She Was Disabled Within the

Meaning of the ADA.

In its present motion, Defendant challenges Plaintiff’s showing as to several

elements of her prima facie case, arguing (i) that Plaintiff’s condition does not

meet the ADA’s definition of a “disability,” (ii) that it was not aware of her

purported disability, (iii) that Plaintiff was not otherwise qualified for her former

position, and (iv) that Plaintiff has failed to produce evidence indicating that she

was singled out for discharge for impermissible reasons. The Court agrees as to

the first of these contentions, and therefore need not address the remaining

elements of Plaintiff’s prima facie case.

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As pertinent to this case, the ADA defines a “disability” as (i) “a physical or

mental impairment that substantially limits one or more major life activities of [an]

individual,” or (ii) “being regarded as having such an impairment.” 42 U.S.C. §

12102(1)(A), (C).7 This definition was left unchanged by the ADA Amendments

Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553, but this enactment

supplied a number of “[r]ules of construction” that, among other things, dictate

that the statutory definition of disability “shall be construed in favor of broad

coverage of individuals under [the ADA], to the maximum extent permitted by the

terms of” the statute. 42 U.S.C. § 12102(4)(A). Moreover, while the Supreme

Court had held that an impairment must have a “permanent or long term impact”

in order to qualify as disabling under the ADA, Toyota Motor Manufacturing, Inc.

v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 691 (2002), the ADAAA overruled

this aspect of the Toyota decision (among others), providing that “[a]n impairment

that is episodic or in remission is a disability if it would substantially limit a major

life activity when active.” 42 U.S.C. § 12102(4)(D); see also Spence v. Donahoe,

No. 11-3203, 515 F. App’x 561, 569 (6th Cir. Feb. 21, 2013) (recognizing that the

ADAAA “expressly overruled” Toyota’s holding that “temporary physical

7The ADA’s definition of a “disability” also encompasses “a record of such an

impairment,” 42 U.S.C. § 12102(1)(B), but Plaintiff does not seek to invoke this prong of

the statutory definition in this case.

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conditions do not generally constitute substantial impairments”).

In her complaint, Plaintiff alleges that at the time of the events giving rise to

this case, she suffered from “adrenal insufficiency, hypothyroidism, mastocytosis

and histamine release syndrome.” (Complaint at ¶ 35.) As evidence of these

claimed impairments and their impact upon major life activities, Plaintiff cites her

own deposition testimony and thirteen pages of medical records attached as an

exhibit to her response to Defendant’s motion. (See Plaintiff’s Response Br. at 15-

16.)8

 Upon reviewing this record, however, the Court finds that no reasonable

trier of fact could conclude from this evidence that Plaintiff was “disabled” as this

term is defined in the ADA.

The first portion of the medical record submitted by Plaintiff consists of a

table listing the dates she visited her physician, a terse description of the

“[p]roblems” that triggered each of these visits, the “[s]tatus” of these problems,

and the name of her attending physician. (See Plaintiff’s Response, Medical

8Notably, Plaintiff does not cite to any particular portions of these medical records

in support of the various factual assertions made in her response to Defendant’s motion. 

Instead, the Court has been left to its own devices in identifying evidentiary support for

these assertions. Cf. Fed. R. Civ. P. 56(c)(1)(A) (mandating that a party “cit[e] to

particular parts of materials in the record” in order to support a claim of a genuine factual

dispute).

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Records at 1-2.)9

 Although each of these problems is characterized as “[a]ctive,”

nothing in the record suggests what this might mean, nor is there any indication

that a physician diagnosed Plaintiff as suffering from any of the impairments

identified as “problems.” In addition, the record fails to indicate who generated

this table or the source of the information it contains.

Much of the remaining medical record is equally unilluminating. One table,

for instance, lists a number of dates from 2011 to 2015 that Plaintiff visited a

particular medical facility and a one-word statement of the “[r]eason” for each

visit. (Id. at 3.) Although the stated “reason” for several of these visits is

hypothyroidism, there again is no evidence that a physician diagnosed Plaintiff as

suffering from this condition, nor any indication of the source data from which this

table was generated. Similarly, while Plaintiff has produced two-page summaries

of two visits to her physician, (see id. at 4-7),10

 there is no indication that the

conditions identified in the “Problem Lists” for these visits reflect actual

diagnoses by a medical professional, as opposed to, say, patient complaints or

9This table indicates, for example, that Plaintiff saw her physician in August of

2012 and February of 2013 in connection with adrenal insufficiency and a hypothyroid

issue. 

10The copies produced for the Court’s review are of poor quality, and it is difficult

to discern the dates of these two visits. Indeed, it is not even clear that these materials

reflect two separate office visits.

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potential concerns that required further investigation. In fact, the “notes” portion

of these summaries state that there is “[n]o evidence of adrenal insufficiency,” (see

id. at 5, 6), and the remainder of the notes are not sufficiently self-explanatory to

reflect a diagnosis of any of the conditions identified in Plaintiff’s complaint.

The next document in Plaintiff’s “medical records” is the brief January 28,

2014 note submitted by Plaintiff’s physician in support of her request that she be

excused from attending the February 2014 national sales meeting. (See id. at 8.) 

As observed earlier, this note does not disclose any diagnosis of a medical

condition, but instead states that Plaintiff had “experienced symptoms consistent

with thyroid and hormonal imbalance,” and that she also had “lost weight,

consistent with these issues.” (Id.) Accordingly, Plaintiff’s physician

recommended that she “not fly in an airplane or take any trips outside this

geographic area” while she was being “evaluated and treated.” (Id.)

The final few pages of the “medical records” submitted by Plaintiff concern

a leave of absence she requested in July of 2010. (See id. at 9-13.) In support of

this request, Plaintiff’s physician completed a form stating (i) that Plaintiff had

“present[ed] [with] extreme fatigue, peripheral neuropathy, thyroid disorder and

decreased mental clarity,” (ii) that she was being given treatment “aimed at

rebalancing thyroid and adrenal glands and addressing nutritional deficiencies to

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improve cognitive functioning and address physical symptoms,” (iii) that this

condition began in September of 2009 and was expected to last approximately six

months to a year, and (iv) that Plaintiff would be unable to perform at least some

of her job duties due to “[f]atigue and decreased mental clarity.” (Id. at 11.) 

Plaintiff’s physician further opined that her condition could “maybe” involve

episodic flare-ups with symptoms that would “prevent her ability to perform job

duties,” but that “[i]deally” Plaintiff would “not have flare ups once [her]

treatment begins.” (Id. at 12.)

In a decision that post-dates the ADAAA and its more expansive rules of

construction, the Sixth Circuit recently held that a plaintiff’s “bare assertions”

regarding a health condition or concern, “without any supporting medical

evidence, cannot establish a ‘physical or mental impairment’ within the meaning

of the ADA.” Neely v. Benchmark Family Services, No. 15-3550, 640 F. App’x

429, 433 (6th Cir. Jan. 26, 2016); see also Felkins v. City of Lakewood, 774 F.3d

647, 652-53 (10th Cir. 2014); Cadwell v. Henry Ford Health System, No. 14-

13887, 2016 WL 5369608, at *7 n.7 (E.D. Mich. Sept. 26, 2016). While Plaintiff

maintains that her “medical records show that she suffers from thyroid and adrenal

insufficiencies,” (Plaintiff’s Response Br. at 15), a survey of these records fails to

disclose a medical professional’s diagnosis of any such condition, much less any

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medical findings that would substantiate or support any such diagnosis. Instead,

these records identify only “problems” that evidently led Plaintiff to visit her

physician, with no indication that these health concerns were confirmed (or even

investigated) through examination or medical tests. Indeed, Plaintiff’s bare-bones

submissions do not even disclose the underlying sources of the information they

contain, so it is highly debatable whether this information could be “presented in a

form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

To be sure, Plaintiff’s medical records include a physician’s statement in

support of her July 2010 request for medical leave, and Plaintiff’s physician

indicated in this statement that Plaintiff “maybe” could suffer from episodic flareups of her condition that would prevent her from performing the duties of her job. 

(See Medical Records at 12.) As observed earlier, the ADA as amended by the

ADAAA provides that “[a]n impairment that is episodic or in remission is a

disability if it would substantially limit a major life activity when active,” 42

U.S.C. § 12102(4)(D), and Plaintiff suggests that this July 2010 physician’s

statement supports the conclusion that her “conditions were flaring in January

2014 when [she] requested the accommodation to be excused from the mandatory

National Sales Meeting,” (Plaintiff’s Response Br. at 16.) Yet, nothing in the

medical record forges the requisite link between the conditions identified in the

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July 2010 physician’s statement and the “symptoms,” (Medical Records at 8) — as

opposed to a diagnosed medical condition — that led Plaintiff’s physician to

recommend that she not travel to the February 2014 national sales meeting. See

Deister v. Auto Club Insurance Ass’n, No. 15-1620, 647 F. App’x 652, 655 n.1

(6th Cir. May 11, 2016) (observing that a past diagnosis of an “episodic” condition

does not establish a “disability” under the ADA absent evidence that this condition

“resulted in substantial limitation of [the plaintiff’s] major life activities” at the

time of the challenged adverse employment decision). Rather, it is a matter of

pure speculation whether the health concerns reported by Plaintiff to her physician

in 2013 and 2014 could be said to be “flare-ups” of the condition identified in the

July 2010 physician’s statement. Consequently, the Court finds that Plaintiff has

failed as a matter of law to establish a “physical or mental impairment” within the

meaning of the ADA.

Even assuming that the medical records produced by Plaintiff were

sufficient to establish one or more of the physical impairments alleged in her

complaint, the Court agrees with Defendant that Plaintiff has not shown that these

impairments substantially limited one or more of her major life activities. In an

effort to make this showing, Plaintiff first suggests, without any citation to the

record, that her “thyroid and adrenal deficiencies, when flaring, significantly

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limited her endocrine functions as well as her ability to perform daily activities.” 

(Plaintiff’s Response Br. at 15 (footnote omitted).) Yet, the medical record is

devoid of evidence, such as test results or a physician’s findings, that would

substantiate Plaintiff’s claim of limited endocrine function, much less demonstrate

that this was a “substantial” limitation. Moreover, to the extent that Plaintiff

characterizes her health concerns in 2013 and 2014 as “flare-ups” of a condition

that, according to her physician, left her unable in July of 2010 to perform the

duties of her job and caused her “extreme fatigue” and “decreased mental clarity,”

(Medical Records at 11), the Court already has explained that Plaintiff’s claim of

“flare-ups” of an ongoing, episodic medical condition lacks support in the

evidentiary record.

This leaves only Plaintiff’s own testimony that her medical conditions

caused weight loss and dizziness and affected her endurance, energy level, job

performance, and “every aspect of [her] life,” at least to some degree. (Plaintiff’s

Dep. at 179-82.) As Defendant correctly observes, Plaintiff’s cursory reference to

this testimony in her response to Defendant’s motion falls well short of a properly

supported argument that her alleged impairments “substantially limit[ed] one or

more major life activities,” as required to establish a disability under the ADA. 

Moreover, the Sixth Circuit has repeatedly recognized that a plaintiff’s “self21

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described symptoms,” standing alone, “are insufficient to establish a substantial

limitation on a major life activity.” Neely, 640 F. App’x at 435; see also Simpson

v. Vanderbilt University, No. 08-6548, 359 F. App’x 562, 567 (6th Cir. Dec. 22,

2009); McNeill v. Wayne County, No. 07-2325, 300 F. App’x 358, 361-62 (6th

Cir. Nov. 6, 2008). Accordingly, Plaintiff has failed as a matter of law to establish

that in the time period of relevance here, she suffered from a physical or mental

impairment that substantially limited one or more of her major life activities.

Finally, Plaintiff suggests that she can satisfy the first prong of a prima facie

case of disability discrimination through evidence that Defendant “regarded” her

as disabled. See 42 U.S.C. § 12102(1)(C). This contention, however, is relegated

to a two-sentence footnote, without citation to the record or supporting authority.

(See Plaintiff’s Response Br. at 14 n.10.) “It is well-established that issues

adverted to in a perfunctory manner, unaccompanied by some effort at developed

argument, are deemed waived,” Dillery v. City of Sandusky, 398 F.3d 562, 569

(6th Cir. 2005) (internal quotation marks and citations omitted).

In any event, Plaintiff’s suggested grounds for concluding that Defendant

regarded her as disabled do not pass muster under the pertinent case law. First,

while she contends that her supervisor, Mr. Walsh, regarded her as disabled “after

he witnessed her suffer from extreme dizziness” as he accompanied Plaintiff on

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her sales calls in December of 2013, (see Plaintiff’s Response Br. at 14 n.10), the

Sixth Circuit has held that evidence that a plaintiff’s supervisors and co-workers

observed symptoms of an alleged impairment does not suffice to satisfy the

“regarded as” prong of the ADA’s definition of disability. See Talley v. Family

Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1106 (6th Cir. 2008); see also Neely,

640 F. App’x at 436. Rather, Plaintiff must produce evidence of Defendant’s

belief that she was incapable of performing the functions of her job, see Talley,

542 F.3d at 1106, and she has not done so. Similarly, to the extent that Plaintiff

maintains that Defendant regarded her as disabled when it granted her request to

be excused from attending a national sales meeting in February of 2014, this

episode would suggest, at most, Defendant’s belief that Plaintiff was unable to

perform a specific aspect of her particular job,

11

 and this falls well short of

evidencing a belief that Plaintiff was substantially limited in the major life activity

of working. See Ferrari, 826 F.3d at 893-94; Daugherty v. Sajar Plastics, Inc.,

544 F.3d 696, 704 (6th Cir. 2008). Accordingly, the “regarded as” prong of the

statutory definition of disability does not assist Plaintiff in her effort to establish a

prima facie case of disability discrimination.

11Notably, Plaintiff testified that although she did not travel to the national sales

meeting, she continued to work and call on customers during the days of this meeting. 

(See Plaintiff’s Dep. at 150.)

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2. Even Assuming That Plaintiff Could Establish a Prima Facie

Case of Disability Discrimination, She Has Failed to Show That

Defendant’s Stated Non-Discriminatory Reason for Terminating

Her Employment Is a Pretext for Unlawful Discrimination.

Assuming, contrary to the foregoing analysis, that Plaintiff could establish a

prima facie case of disability discrimination, Defendant would then bear the

burden of articulating a legitimate, non-discriminatory explanation for its adverse

employment decision. See Ferrari, 826 F.3d at 892. There is no dispute that

Defendant has satisfied this burden by pointing to (i) its June 2014 workforce

reduction, and (ii) its selection of Plaintiff for discharge as part of this workforce

reduction, where she was the only employee in her region who was subject to a

performance improvement plan (“PIP”) at the time.

Accordingly, Plaintiff must show that Defendant’s proffered explanation for

her discharge is a pretext for unlawful discrimination. See Ferrari, 826 F.3d at

892. This showing of pretext can be made through evidence (i) that Defendant’s

proffered explanation has no basis in fact, (ii) that the reason given by Defendant

did not actually motivate Plaintiff’s discharge, or (iii) the reason given by

Defendant was insufficient to motivate its discharge decision. See Ferrari, 826

F.3d at 895.

In a single paragraph in her response brief, unadorned by any citation to

authority, Plaintiff suggests two grounds for deeming Defendant’s explanation

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pretextual, but neither is supported by evidence. First, Plaintiff contends that her

supervisor, Mr. Walsh, placed her on a PIP only after he learned of Defendant’s

impending workforce reduction, (see Plaintiff’s Response Br. at 10, 22),

presumably so that he could then cite this PIP as a basis for recommending that

Plaintiff be discharged as part of this workforce reduction. The record, however,

unequivocally refutes Plaintiff’s proposed chronology of the events leading up to

her discharge. Both Mr. Walsh and Defendant’s human resources director, Ms.

Ball, state without contradiction that they spoke in April of 2014 about placing

Plaintiff on a PIP. (See Walsh 4/1/2016 Decl. at ¶ 26; Ball Dep. at 25.) By

Plaintiff’s own admission, this PIP then was delivered to Plaintiff by e-mail on

May 9, 2014. (See Plaintiff’s Dep. at 155-57, 210-11; see also Defendant’s

Motion, Ex. 12 (5/9/2014 E-mail to Plaintiff with attached PIP).) In contrast, the

earliest evidence of a possible workforce reduction is Ball’s testimony that on May

14, 2014 — a few days after Plaintiff received her PIP — she generated a list of

Defendant’s employees and their salaries for use by senior-level management in

their examination of “potential expense-reduction measures, including a potential

workforce reduction.” (Ball 4/3/2016 Decl. at ¶¶ 11-12; see also Ball Dep. at 52-

53, 56, 58-59.) Moreover, Mr. Walsh states without contradiction that he first

learned of Defendant’s planned workforce reduction on May 27, 2014, during a

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conference call in which his supervisor, Mr. Breithaupt, asked each of Defendant’s

regional managers to identify an employee to consider for layoff in the event of

this reduction. (See Walsh 4/1/2016 Decl. at ¶ 36; Walsh Dep. at 66-68, 75.) 

Accordingly, there is no evidentiary support for Plaintiff’s theory that her PIP was

developed as a means to ensure her discharge in Defendant’s forthcoming

workforce reduction.

Next, Plaintiff contends that Mr. Walsh placed her on a PIP even though

“other OSRs in his region had inferior objective performance rankings.” 

(Plaintiff’s Response Br. at 22.) Unfortunately, Plaintiff does not elaborate on this

bare assertion in her brief discussion of pretext, but instead leaves the Court to its

own devices in culling the requisite argument and evidentiary support from other

portions of Plaintiff’s response brief. Nonetheless, it appears that the “other

OSRs” alluded to in this passage are Andrew Bennett, Carrie Visser, and Jeffrey

Kloosterman.

The record does not support Plaintiff’s claim that these other OSRs were

treated more favorably than her despite their inferior job performance. Turning

first to Andrew Bennett, Plaintiff correctly observes that he fell short of his 95-

percent goal in nine out of twelve months in FY 2013, versus only seven of twelve

months for Plaintiff, and that his overall average of 92.9 percent for FY 2013 was

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lower than Plaintiff’s average of 95.94 percent. (See Plaintiff’s Response, Ex. 11,

FY 2013 Sales Results; Ex. 17, Sales Goal Averages for FY 2013.) Yet, Plaintiff

neglects to mention that for the first eight months of FY 2014 prior to her

discharge, Plaintiff failed to meet her 95-percent goal in seven of these eight

months, while Mr. Bennett fell short of this goal in only three months (including

one month where he achieved 94.8 percent of his goal, just short of the 95-percent

target). (See Plaintiff’s Response, Ex. 11, FY 2014 Sales Results; Ex. 17, Sales

Goal Averages for FY 2014.) Moreover, Mr. Bennett’s overall average for this

eight-month period was over 100 percent, well in excess of his 95-percent goal,

while Plaintiff’s overall average was 87.14 percent. (See id.) Thus, for the several

months leading up to Plaintiff’s PIP, it cannot be said that Mr. Bennett escaped

this fate despite inferior job performance.

The record of Carrie Visser’s sales performance is quite similar. Ms.

Visser, like Plaintiff, failed to meet her 95-percent goal in seven of twelve months

in FY 2013, and her overall average of 94.86 percent for FY 2013 was slightly

lower than Plaintiff’s 95.94 average. (See Plaintiff’s Response, Ex. 11, FY 2013

Sales Results; Ex. 17, Sales Goal Averages for FY 2013.) Once again, however,

the figures for FY 2014 cast Ms. Visser’s sales performance in a more favorable

light. She, like Mr. Bennett, fell below her 95-percent goal in three of the first

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eight months of FY 2014, while Plaintiff failed to meet this goal in seven of these

eight months. (See Plaintiff’s Response, Ex. 11, FY 2014 Sales Results; Ex. 17,

Sales Goal Averages for FY 2014.) In addition, her overall average of 100.56

percent far exceeded Plaintiff’s average of 87.14 percent for this same period. 

(See id.) Ms. Visser’s sales record, then, does not assist Plaintiff in demonstrating

that she was treated less favorably despite comparable job performance.

Turning, finally, to the sales performance of Jeffrey Kloosterman, he was

not hired until March of 2013, midway through FY 2013, and his sales record for

the remainder of this fiscal year was fairly comparable to Plaintiff’s — falling

short of his 95-percent goal in four of the remaining seven months (versus five for

Plaintiff), and averaging 93.71 percent over this seven-month period (versus 95.94

percent for Plaintiff over the entire twelve-month fiscal year). (See Plaintiff’s

Response, Ex. 11, FY 2013 Sales Results; Ex. 17, Sales Goal Averages for FY

2013.) Mr. Kloosterman’s sales record in FY 2014, however, tends to support

Plaintiff’s claim of disparate treatment, where he (like Plaintiff) failed to meet his

95-percent goal in seven of the first eight months of this fiscal year, and where his

average of 82.66 percent over this eight-month period was below Plaintiff’s

average of 87.14 percent for the same period. (See Plaintiff’s Response, Ex. 11,

FY 2014 Sales Results; Ex. 17, Sales Goal Averages for FY 2014.)

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This arguably favorable comparison to Mr. Kloosterman, however, does not

withstand closer scrutiny. First, when Plaintiff was placed on a PIP in May of

2014, she had been employed by Defendant for over five and a half years, while

Mr. Kloosterman was a relatively new employee who had been with the company

for just over a year. Next, while Plaintiff’s comparison to her fellow OSRs rests

entirely on sales performance, Plaintiff’s PIP also cited her failure to meet her

employer’s expectations regarding the “frequency and quality of [her]

communication” with her supervisor, Mr. Walsh. (PIP at 1.) There is no evidence

of similar deficiencies in Mr. Kloosterman’s communications with Mr. Walsh; to

the contrary, Mr. Walsh has stated that Mr. Kloosterman “continuously

communicated with me to show he was engaged and working to regain and

improve his market share.” (Walsh 4/1/2016 Decl. at ¶ 32.) Finally, while

Plaintiff asserts that Mr. Kloosterman “was never disciplined formally or

informally for his consistently poor sales performance,” (Plaintiff’s Response Br.

at 6), the testimony cited in support of this contention addresses only PIPs, and not

other forms of discipline, and the record is silent as to whether Mr. Kloosterman

was counseled or disciplined in some manner as a result of shortfalls in his sales

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performance.12

In summary, the record fails to support Plaintiff’s contention that she alone

was placed on a PIP, despite the allegedly inferior job performance of other OSRs

in her region. Because Plaintiff has not identified a basis in the record for

concluding that Defendant’s explanations for placing her on a PIP and

subsequently terminating her employment are a pretext for discrimination on the

basis of her alleged disability, she cannot meet her burden under the third and final

stage of the McDonnell Douglas standard for proving unlawful discrimination

through indirect evidence.

C. Plaintiff Has Failed to Establish a Prima Facie Case of Retaliation

Under the ADA, Nor Has She Shown that Defendant’s Stated Reason

for Her Discharge Is a Pretext for Unlawful Retaliation.

 

In Count II of her complaint, Plaintiff asserts that Defendant retaliated

against her for engaging in activity that is protected under the ADA. More

specifically, Plaintiff alleges that Defendant singled her out for retaliation — by,

among other things, placing her on a PIP and then discharging her — after she

requested (and was granted) permission not to attend a February 2014 national

12

In fact, Mr. Kloosterman testified that he began his first year of employment with

Defendant on a “subsidy” that guaranteed him a minimum dollar amount in commissions,

but that this subsidy was taken away “because my numbers had fallen, and it was a way to

force me to become much more aggressive in my accounts.” (Defendant’s Motion, Ex.

23, Kloosterman Dep. at 31.)

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sales meeting due to health concerns that her physician was evaluating and

treating. The Court need not address this claim at great length, because it is

defeated on many of the grounds already discussed with respect to Plaintiff’s

claim of disability discrimination.

The ADA prohibits “discriminat[ion] against any individual because such

individual has opposed any act or practice made unlawful by this chapter or

because such individual made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C.

§ 12203(a). In the absence of direct evidence of retaliation — and Plaintiff cites

no such direct evidence here — an ADA claim of retaliation is evaluated under the

same tripartite McDonnell Douglas standard that governs claims of disability

discrimination. See Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007). At

the first stage of this inquiry, Plaintiff must establish the three elements of a prima

facie case: (i) that she engaged in protected activity, (ii) that she suffered an

adverse employment action, and (iii) that there is a causal link between her

protected activity and the adverse employment decision. See Bryson, 498 F.3d at

577.

Although Defendant principally challenges Plaintiff’s showing as to the

third of these elements, it questions as a threshold matter whether Plaintiff

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engaged in any activity protected under the ADA. (See Defendant’s Motion, Br.

in Support at 16 n.6.) In support of this contention, Defendant observes that while

Plaintiff requested an accommodation — namely, that she be excused from

traveling to a national sales meeting — this request was expressly based on

“symptoms” that she was experiencing at the time, (see Defendant’s Motion, Ex.

3, Plaintiff’s 1/29/2014 E-mail), and not a disability within the meaning of the

ADA. It follows, in Defendant’s view, that a request for an accommodation that

does not arise from an ADA disability should not count as protected activity under

the ADA.13

While there is an undeniable logic to this argument, it is foreclosed by

binding Sixth Circuit law. In Bryson, the court explained that “[a] plaintiff may

prevail on a disability-retaliation claim even if the underlying claim of disability

13More generally, one court has questioned whether an ADA retaliation claim that

is based on a request for an accommodation “can be squared with the text of the statute.” 

Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 907 (8th Cir. 2010). The ADA’s

anti-retaliation provision, after all, protects only those individuals who “opposed any act

or practice made unlawful by this chapter” or who “made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this chapter,”

42 U.S.C. § 12203(a), and the court in Kirkeberg observed that an employee who requests

a reasonable accommodation of her disability has not engaged in any of these specified

activities, see Kirkeberg, 619 F.3d at 907. Nonetheless, the court recognized that under

binding Eighth Circuit precedent, a good faith request for a reasonable accommodation

qualifies as protected activity, see Kirkeberg, 619 F.3d at 907-08 (citing Heisler v.

Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003)), and this Court likewise is

bound by the Sixth Circuit’s holding to the same effect in Bryson, 498 F.3d at 577.

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fails.” 498 F.3d at 577 (internal quotation marks and citations omitted). In

support of this conclusion, the court pointed to cases from other circuits

recognizing that a request for an accommodation suffices to trigger protection

under the ADA’s anti-retaliation provision, even if the requesting plaintiff cannot

show that she is disabled within the meaning of the ADA. 498 F.3d at 577 (citing

the Eighth Circuit’s decision in Heisler, as well as cases from other circuits). 

While the Sixth Circuit subsequently declined to extend Bryson to a case in which

the plaintiff neither “requested an accommodation” nor “filed a formal charge

while employed,” but instead merely “discuss[ed] his sleep issues with his

employer,” Neely, 640 F. App’x at 437, the present case plainly is governed by

Bryson rather than Neely, in light of Plaintiff’s request for an accommodation.

Turning, then, to the third element of Plaintiff’s prima facie case, she must

establish a causal connection between her request for an accommodation and an

adverse employment decision. In her response to Defendant’s motion, Plaintiff

once again fails to marshal much of an argument on this point, simply declaring

(without citation to the record or reference to any pertinent authority) that Mr.

Walsh “singled [her] out for retaliation” after she missed the February 2014

national sales meeting by “ignor[ing] her and refus[ing] to work with her,”

breaking a purported promise to ride along with Plaintiff in March, placing her “on

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an unjustified PIP,” and selecting her for discharge “because she was the only

OSR that he had placed on a PIP.” (Plaintiff’s Response Br. at 20.) Apart from

noting the bare fact that Mr. Walsh took these various actions after Plaintiff had

requested an accommodation, Plaintiff does not suggest a basis for forging a

causal connection between the former and latter occurrences.

14

 The Sixth Circuit

has emphasized, however, that temporal proximity alone is ordinarily insufficient

to establish the causal connection prong of a prima facie case of retaliation, unless

“an adverse employment action occurs very close in time after an employer learns

of a protected activity.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th

Cir. 2008). In this case, nearly three months passed between Plaintiff’s request for

an accommodation and Mr. Walsh’s decision to place her on a PIP, and then

another month went by before Plaintiff was discharged, so this lack of close

temporal proximity precludes reliance on this consideration alone to establish the

requisite causal connection.

Although Plaintiff fails to expressly identify any other evidence that might,

14Neither does Plaintiff even attempt to explain why each of the actions allegedly

taken by Mr. Walsh should qualify as “adverse” under the second prong of her prima

facie case. It seems doubtful, for example, that Mr. Walsh’s failure to ride along with

Plaintiff at some point during the month of March would constitute an adverse

employment action. Moreover, Defendant notes that Plaintiff has failed to identify any

evidentiary support for her claims that Mr. Walsh ignored her, refused to work with her,

and skipped a scheduled ride-along in March, and it contends that the record refutes each

of these assertions. (See Defendant’s Reply Br. at 4-5 n.4.)

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in her view, forge a causal connection between her protected activity and an

adverse employment decision, she presumably believes that this showing may

properly rest on the grounds (i) that she was placed on an “unjustified” PIP despite

job performance comparable to or better than that of her OSR peers, (see

Plaintiff’s Response Br. at 20), and (ii) that this PIP was then relied upon by Mr.

Walsh as a means to single out Plaintiff for discharge in Defendant’s forthcoming

workforce reduction. The Court has already addressed each of these arguments in

the context of Plaintiff’s claim of disability discrimination, and that analysis is

fully applicable here. It follows that Plaintiff cannot establish the third element of

her prima facie case of retaliation.

Even assuming that Plaintiff could establish a prima facie case, the

remaining analysis of her retaliation claim would proceed along precisely the same

lines as the Court’s earlier assessment of Plaintiff’s claim of disability

discrimination. In particular, just as Plaintiff has failed to show that Defendant’s

stated non-discriminatory grounds for placing Plaintiff on a PIP and terminating

her employment were a pretext for unlawful discrimination, it follows for the same

reasons that she cannot show that the explanations given by Defendant for these

actions were a pretext for unlawful retaliation. Accordingly, Defendant is entitled

to an award of summary judgment in its favor on Plaintiff’s ADA claim of

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retaliation.

IV. CONCLUSION

For the reasons set forth above,

IT IS HEREBY ORDERED that Defendant’s April 4, 2016 motion for

summary judgment (docket #39) is GRANTED.

s/Gerald E. Rosen 

United States District Judge

Dated: January 24, 2017

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on January 24, 2017, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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