NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0453n.06

Case No. 18-5928

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DOUGLASS BOLDEN II,

Plaintiff-Appellant,

v.

LOWES HOME CENTERS, LLC,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF 

TENNESSEE

Before: MERRITT, CLAY, and ROGERS, Circuit Judges.

MERRITT, Circuit Judge. Plaintiff Douglass Bolden appeals the grant of summary 

judgment to defendant Lowe’s Home Centers, LLC, on his federal and state-law claims of 

employment discrimination based on his religion and a disability. Bolden was a long-time 

employee of defendant Lowe’s at two locations in Middle Tennessee. He was primarily employed 

as a delivery driver during his employment, although he performed other duties and was a cashier 

at the time of his discharge. As a Seventh Day Adventist, plaintiff cannot work on Saturdays. 

Lowe’s knew this when it hired him, and accommodated his religion throughout his 14-year 

employment by not scheduling him to work on Saturdays. 

On appeal, plaintiff argues that disputed issues of material fact preclude summary 

judgment. However, plaintiff has not identified disputed issues supported by admissible evidence, 
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and instead relies on conclusory allegations about Lowe’s perceived motives. Furthermore, even 

if plaintiff had successfully made out a prima facie case of discrimination on the basis of religion 

or disability, plaintiff failed to demonstrate that Lowe’s stated nondiscriminatory reason for 

terminating plaintiff—that he violated store policy by leaving his cash register to follow a 

shoplifter out of the store—was a pretext for discrimination. For the following reasons, we affirm 

the judgment of the district court.

I.

Facts and Procedural History

Lowe’s hired plaintiff in August 2003 as a delivery driver at its Madison, Tennessee 

location. Plaintiff, a Seventh Day Adventist, informed Lowe’s he would be unavailable for work 

from sundown on Friday to sundown on Saturday in observance of the Sabbath, in accordance 

with his religious beliefs. Lowe’s accommodated plaintiff’s religion by scheduling him to work 

only on days and times that were consistent with his religious beliefs throughout his employment 

at the Madison, Tennessee location. In 2005, plaintiff and his wife divorced, and plaintiff 

requested a transfer to the Dickson, Tennessee store. Lowe’s granted his request, and plaintiff 

became a driver in the Dickson store’s delivery department. Lowe’s continued to accommodate 

plaintiff’s religious beliefs by not scheduling him to work on Saturdays. 

After plaintiff transferred to the Dickson store, Lowe’s implemented a “Scheduling Matrix 

System,” in which full-time employees were not given a set schedule but instead were given two 

days off each week. The days off rotated over a four-week period. Lowe’s hoped to staff each 

department so every full-time employee had at least one weekend off every four weeks. After the 

implementation of the new scheduling system, plaintiff requested to be scheduled off from work 

every other Sunday in order to comply with court-ordered visitation with his minor daughter. 

Lowe’s granted plaintiff’s request, which resulted in plaintiff receiving a unique schedule because 
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he had both Saturday and Sunday off every other weekend. This arrangement continued without 

incident for almost 10 years. 

On January 12, 2015, plaintiff received his annual review from assistant manager Scottie 

Gunkel. On his review form, plaintiff checked the box indicating he had little interest in a job 

change, but he also checked the box indicating his interest in exploring the training required for a 

promotion, hand writing on the form “depends on an offer.” Bolden Dep. at 184-87 & Ex. 22. 

However, plaintiff never applied for a promotion because he “believed” his unavailability to work 

on Saturdays would prevent him from being selected. He said if there was a management position 

available that did not require working on Saturdays, he would be interested. Id. at 64-67, 76.

On February 13, 2015, plaintiff was issued an “initial warning” based on a customer 

complaint and a report from his immediate supervisor, Chris Vickery, that plaintiff was 

insubordinate, took too long to complete deliveries, ran personal errands while on the clock for 

Lowe’s, and refused to timely comply with instructions. Green Decl. ¶¶ 14-16. Plaintiff refused 

to sign the warning form. Bolden Dep. at Ex. 9. No disciplinary action was taken against plaintiff 

based on the warning.

In September 2015, seven months after plaintiff received the warning, store manager Nick 

Green and Human Resources Manager Sean LeMaster asked plaintiff if he could work Saturdays 

because the store was short staffed. Plaintiff reiterated that he could not work Saturdays due to his 

religious beliefs. After this meeting, assistant store manager David Owens noticed plaintiff was 

getting two complete weekends off—both Saturday and Sunday—on his four-week rotation, while 

all other drivers were working every weekend based on staffing needs. Owens Decl. ¶¶ 4-5. 

Human resources informed Owens that plaintiff was entitled to receive every Saturday off based 

on his religion, but the company was not required to grant plaintiff’s request to be off every other 
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Sunday to accommodate his custody arrangement. After discovering that plaintiff’s child was over 

18 by this point and the custody order was no longer applicable, Owens revised plaintiff’s schedule 

to continue giving him every Saturday off for religious reasons, but only one Sunday off during 

the four-week rotation, consistent with the other drivers’ schedules. Id. at ¶¶6-8. 

On November 13, 2015, plaintiff complained to Angelie Rodriguez, the human resources 

manager, that he believed Owens changed his schedule in retaliation for his refusal to work on 

Saturdays. Bolden Dep. at 94-104 & Ex. 8. Lowe’s explained that was not the case, but rather his 

schedule was changed only as the result of the changed staffing needs and was changed only as to 

Sundays, not as to Saturdays. Plaintiff continued to work without incident and had every Saturday 

off from work.

Plaintiff injured his ankle at work on July 3, 2016, and filed a workers’ compensation claim. 

He also requested an accommodation at work because his physician restricted him from picking 

up more than 25 pounds, and prohibited kneeling, squatting and climbing stairs. Seay Decl. at 

Ex. A. Plaintiff returned to work on July 12 and, consistent with his physician’s restrictions, was 

given temporary duty at the customer service desk. Id. at ¶¶ 6-7. Two months later, in September 

2016, plaintiff reinjured his ankle while on vacation. His physician ordered further restrictions on 

plaintiff’s physical movements based on this injury, concluding that plaintiff will need a position 

“that will allow him to stay off his feet, with [his] left foot elevated, for the next week.” Id. at Ex. 

B. Bolden continued to work the temporary light-duty position at the customer service desk. Id. 

at ¶ 9. On October 7, 2016, plaintiff’s workers’ compensation claim was denied due to the 

intervening non-work-related injury. Id. at ¶ 10. Plaintiff remained in the same light-duty 

temporary position. 
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The next week, plaintiff’s physician restricted his activities further to sedentary work “as 

much as possible.” The new restrictions prohibited plaintiff from “carrying, pushing or pulling 

any weight whatsoever, squatting or kneeling whatsoever,” and ordered that plaintiff “can only 

bend/stoop occasionally.” Bolden Dep. at 129-36 & Ex. 10. Plaintiff filed a new request for 

accommodation, but Lowe’s did not have a position to accommodate the restrictions. He was 

offered unpaid leave, which he accepted. Seay Decl. at ¶ 12. Plaintiff later requested and received 

12 weeks of leave under the Family and Medical Leave Act, followed by more unpaid leave. 

Plaintiff was later certified as “incapacitated” by his physician from July 1, 2016, to April 17, 

2017. Id. at ¶ 13; Bolden Dep. at 148-52 & Exs. 12, 15. In March 2017, plaintiff’s physician lifted 

some of the restrictions on plaintiff’s activities earlier than anticipated, and plaintiff was able to 

return to work. He was offered and accepted a cashier job, which was less physically demanding 

than his previous delivery position. Seay Decl. ¶ 15-16. 

On June 26, 2017, plaintiff was operating a cash register when a shoplifter walked out of 

the store with stolen merchandise. In accordance with Lowe’s “Recover Merchandise Without 

Detention and Deter Shoplifters” policy, plaintiff addressed the shoplifter to verify whether he had 

a receipt. Bolden Dep. at Ex. 19. The shoplifter ignored him and continued to leave the store. 

Plaintiff claims that because there were no managers or head cashiers present, he was “acting 

management” during this incident, and it was in this capacity that he went outside to get the 

shoplifter’s license plate number. Id. at 169. The shoplifter did not get into a car, but fled Lowe’s

property on foot to a neighboring field where he was detained by three customers who were in the 

parking lot at the time of the incident. Plaintiff then walked over to the field to give testimony to 

the police. Id. at 162-75. Lowe’s conducted an investigation into plaintiff’s conduct during this 

incident. Lowe’s determined that plaintiff abandoned his active register and pursued the shoplifter 
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outside the store in violation of store policy and its “Rules of Conduct.” Plaintiff concedes he did 

not have and did not seek explicit permission to leave his register or to follow a shoplifter out of 

store. Id. at 162-75. Based on this information, Lowe’s terminated plaintiff on July 10, 2017. 

Plaintiff filed an Amended Complaint on July 24, 2017, bringing claims of religious 

discrimination, failure to accommodate his religion, discrimination on the basis of disability, and 

failure to accommodate his disability. Lowe’s filed for summary judgment, and the district court

granted the motion on all claims. Bolden v. Lowes Home Ctrs., LLC, No. 3:17-cv-00741, 2018 

WL 4181614 (M.D. Tenn. Aug. 31, 2018). The district court granted summary judgment to 

Lowe’s on the following claims: (1) religious discrimination in violation of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000, et seq., and the Tennessee Human Rights Act, Tenn. Code 

Ann. § 4-21-101, et seq.; (2) failure to promote on the basis of religion in violation of Title VII 

and the Tennessee Human Rights Act; and (3) failure to accommodate a disability in violation of 

the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the Tennessee Disabilities 

Act, Tenn. Code Ann. § 8-50-103.

1

II.

A. Religious Discrimination Claims

Plaintiff advances claims of religious discrimination, failure to accommodate his religion 

and failure to promote him due to his religion all in violation of Title VII and the Tennessee Human 

Rights Act. Title VII provides that “[i]t shall be an unlawful employment practice for an employer 

. . . to discriminate against any individual . . . because of such individual’s race, color, religion, 

sex, or national origin.” 42 U.S.C. § 2000e–2(a). To prevail on a claim of religious discrimination 

 

1 The district court declined to rule on plaintiff’s claims of interference with the Family and Medical Leave Act, 

workers’ compensation retaliation, and intentional infliction of emotional distress, finding them waived because 

plaintiff did not dispute them in his opposition to the summary judgment motion. Plaintiff does not pursue these 

claims on appeal. Reply Br. at 6.
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under Title VII and the Tennessee Human Rights Act, which use identical analyses in this context,

see Burdette v. Fed. Express Corp., 367 F. App’x 628, 632 (6th Cir. 2010), a plaintiff must present 

either direct evidence of discrimination or make out a prima facie case of indirect discrimination. 

Plaintiff puts forth numerous arguments regarding religious discrimination, some of which he 

claims rely on direct evidence and others on indirect evidence. 

A plaintiff may establish a claim of discrimination either by presenting direct evidence of 

discrimination or by presenting circumstantial evidence that would support an inference of 

discrimination. See, e.g., Tepper v. Potter, 505 F.3d 508, 515 (6th Cir. 2007). Where the claim is 

based on circumstantial evidence, our court uses the burden-shifting framework set forth in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973); Tepper, 505 F.3d at 515. 

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of 

discrimination, the elements of which may vary slightly depending on the theory asserted. At the 

summary judgment stage, a plaintiff generally must produce evidence that could lead a reasonable 

fact finder to believe that the plaintiff: (1) is a member of a protected group; (2) was subjected to 

an adverse employment action; (3) was qualified for the position; and (4) was treated less favorably 

than similarly-situated nonprotected employees. 411 U.S. at 802. A plaintiff’s burden at the 

prima facie stage is “not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 

(1981). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the 

defendant to offer evidence of a legitimate, nondiscriminatory reason for its adverse action. 

Tepper, 505 F.3d at 515. If the defendant satisfies its burden, the burden shifts back to the plaintiff 

to identify evidence from which a reasonable jury could find that the stated reason is a pretext for 

discrimination. Id. at 515-16. In order to survive summary judgment, a plaintiff need only produce 
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enough evidence to support a prima facie case and to rebut, but not to disprove, the defendant’s 

proffered rationale. Griffin v. Finkbeiner, 689 F.3d 584, 593 (6th Cir. 2012).

1. Failure to promote 

Plaintiff claims that Lowe’s discriminated against him on the basis of religion by failing to 

promote him to a manager position due to his inability to work Saturdays. It is a violation of Title 

VII to fail to promote an employee because of his or her membership in a protected class. See, 

e.g., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005). To establish a 

claim based on failure to promote, plaintiff must show: (1) he was a member of a protected class; 

(2) he applied and was qualified for a promotion; (3) he was considered for and denied the 

promotion; and (4) an individual of similar qualifications who was not a member of the protected 

class received the job at the time plaintiff’s request for the promotion was denied. Id.; Nguyen v. 

City of Cleveland, 229 F.3d 559, 562–63 (6th Cir. 2000). 

The dispute here centers on whether plaintiff applied for any management position. Expressing 

a generalized interest in a position is generally insufficient. Wanger v. G.A. Gray Co., 872 F.2d 

142, 146 (6th Cir. 1989). While “[a] generalized expression of interest in a position will not qualify 

as an application for employment,” we have acknowledged that “putting the employer on specific 

notice of interest is usually sufficient.” Grant v. Harcourt Brace Coll. Pubs., No. 98-3829, 1999 

WL 717982, at *4 (6th Cir. Sept. 9, 1999) (citing Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1251 

(10th Cir. 1992)). Additionally, we have held:

when the employer does not notify its employees of the available promotion or does 

not provide a formal mechanism for expressing interest in the promotion . . . the 

company is held to a duty to consider all those who might reasonably be interested 

in a promotion were its availability made generally known.

Dews v. A.B. Dick Co., 231 F. 3d 1016, 1022 (6th Cir. 2000). We have said that a nonapplicant in 

certain circumstances can qualify for relief where he made a “reasonable attempt to demonstrate 
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to the employer that he is interested in the job.” Harcourt Brace Coll. Pubs., 1999 WL 717982, 

at *4 (citing EEOC v. Metal Serv. Co., 892 F.2d 341, 348-49 (3d Cir. 1990) (listing cases in which 

nonapplicants established prima facie cases of discrimination by showing a reasonable attempt to 

demonstrate interest in an open position)). 

Alternatively, a plaintiff can establish a prima facie case by demonstrating he did not formally 

apply for the promotion due to discouragement by superiors. See Wanger, 872 F.2d at 145 

(“Because an employer may create an atmosphere in which employees understand that their 

applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances 

qualify for relief . . .”) (quoting Babrocky v. Jewel Food Co. and Retail Meatcutters Union, Local 

320, 773 F.2d 857, 867 (7th Cir. 1985)); Nguyen, 229 F.3d at 563–64. For this exception to the 

general rule to apply, “the circumstances must reveal ‘overwhelming evidence of pervasive 

discrimination in all aspects of [the employer’s] internal employment practices, and [that] . . . any 

application would have been futile and perhaps foolhardy.’” Bacon v. Honda of Am. Mfg., Inc., 

370 F.3d 565, 576 (6th Cir. 2004) (emphasis added and alterations in the original) (quoting Harless 

v. Duck, 619 F.2d 611, 617-18 (6th Cir. 1980)). 

Plaintiff concedes he never applied for a specific position, Bolden Dep. at 66-67, but he 

contends that exceptions to the formal application rule apply. He first argues that Lowe’s knew 

he wanted a manager position if one became available that would accommodate his need to have 

Saturdays off because he checked the box on his annual review form that he is “very interested in 

exploring the training for a necessary promotion” while also expressing an interest in a position 

that would accommodate his Sabbath. Bolden Dep. at 74, 185-187 & Ex. 22. Plaintiff also 

contends that he didn’t apply for a manager position because he was discouraged from doing so 

when assistant manager Gunkel agreed with plaintiff that he could not be a manager because his 
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religious beliefs prohibited him from working Saturdays. Id. at 67. Plaintiff further argues that 

promotions were made by word of mouth and he had obtained promotions previously without 

formally applying, such as his promotion to delivery driver. 

For its part, Lowe’s argues that plaintiff was not entitled to a promotion because he did not 

comply with Lowe’s policy to formally apply for a manager position. Green Decl. at ¶ 13. Lowe’s 

allows for verbal transfer requests, which plaintiff had made previously, but only for lateral, nonmanagement positions. A formal application is required for promotions to management positions 

and certain other work changes. Id. For example, plaintiff filled out paperwork when he moved 

from the Madison store to the Dickson store. Bolden Dep. at 69-72. 

Plaintiff’s evidence shows he expressed only a general interest in a manager position, and such 

a showing is not enough to meet the application requirement when applying for a management 

position. His evaluation and career development forms indicate he was satisfied with his job and 

had little interest in a job change, although he expressed interest in exploring the training required 

for a promotion. At most, plaintiff expressed only a general interest in a management position at 

Lowe’s, and this is not enough to meet the application requirement.

 As for Gunkel’s verbal agreement with plaintiff that plaintiff could not hold a management 

job due to his inability to work Saturdays, this isolated incident involving one assistant manager 

is not the sort of “evidence of pervasive discrimination in all aspects of [the employer’s] internal 

employment practices” that a plaintiff must put forward to excuse the application requirement. 

Bacon, 370 F.3d at 576 (emphasis added and alterations in the original) (quoting Harless, 619 F.2d 

at 617-18). 

Even if plaintiff could demonstrate a disputed issue as to one of the exceptions to the formal 

application rule, plaintiff’s case fails because he did not identify a similarly situated employee who 
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was not a Seventh Day Adventist and was promoted to a management position without completing 

an application. Plaintiff has not met the prima facie burden for failure to promote under Title VII 

or the Tennessee Human Rights Act.

2. Termination

Plaintiff also claims his religious beliefs caused his termination. Using the four-part burdenshifting framework of McDonnell Douglas, only the fourth prong, comparing plaintiff’s treatment 

to others similarly situated, is in dispute. First, as a Seventh Day Adventist, plaintiff is a member 

of a protected class. Second, the undisputed facts show plaintiff experienced an adverse 

employment action when he was terminated on July 10, 2017. Third, neither party disputes that 

plaintiff was qualified for his position at the cash register, which is the job he had when he was 

terminated. To satisfy the fourth prong, plaintiff compares his conduct concerning his termination 

for following a shoplifter out of the store to the conduct of four other Lowe’s employees: Former 

Lowe’s store manager Hornsby, former Lowe’s cashiers Stewart and Shields, and current Lowe’s 

customer service associate Brand, who was working with plaintiff on the day of the shoplifting 

incident that resulted in plaintiff’s termination. To be deemed “similarly-situated,” the individuals 

with whom the plaintiff seeks to compare his treatment generally “must have dealt with the same 

supervisor, have been subject to the same standards, and have engaged in the same conduct without 

such differentiating or mitigating circumstances that would distinguish their conduct or the 

employer’s treatment of them for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992) 

(citing Mazzella v. RCA Global Commc’ns, Inc., 642 F. Supp. 1531 (S.D.N.Y. 1986)); Stotts v. 

Memphis Fire Dep’t, 858 F.2d 289, 295 (6th Cir. 1988). 

Plaintiff provided insufficient evidence of similarly situated employees who engaged in the 

same conduct and were not terminated. First, plaintiff asserts he was treated differently from
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Hornsby, who was only given a warning for engaging in the same conduct. Lowe’s argues that 

plaintiff and Hornsby were not subjected to the same supervisors, same standards, and did not 

engage in the same conduct. Defendant also notes that Hornsby’s conduct occurred more than 

eleven years before plaintiff’s misconduct, and while Hornsby did detain a customer in violation 

of store policy, plaintiff’s actions were more serious because he left his register without notifying 

management and then pursued a shoplifter out of the store. Defendant further argues that Hornsby 

was eventually terminated in 2016 for violating the same store policy that resulted in plaintiff’s 

termination when she followed a shoplifter out of the store, into the parking lot, and over to the 

shoplifter’s car. Bond Decl. at ¶¶ 4-5. As to the two cashiers plaintiff identifies as similarly 

situated, Lowe’s offered evidence that they were terminated in 2017 for abandoning their registers 

to follow a shoplifter. Id. at ¶¶ 6-8. Plaintiff did not rebut this evidence, and he identified no 

material differences between how he and the two similarly situated former cashiers were 

disciplined. 

Brand, the Lowe’s employee who worked with plaintiff and also went outside when the 

shoplifter ran away, was not terminated for his conduct. Brand followed a coworker outside the 

front door, halted just outside the door before the “yellow lines,” and went no further until after he 

contacted a loss-prevention manager as Lowe’s policy instructs. Brand Dep. at 12-13. Plaintiff 

concedes that Brand stayed behind the “yellow line” just outside the front door and did not continue 

to follow the shoplifter. Unlike plaintiff, Brand called management before proceeding any further 

than just outside the doors, whereas plaintiff continued to the lot across the street where customers 

had detained the shoplifter. Id. at 15-19. 

Brand’s conduct in engaging with the shoplifter was significantly less serious than 

plaintiff’s. Brand’s conduct did not put himself or customers at risk of confrontation. He also 
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called for assistance as directed by store policy. Also relevant, Brand was not stationed at a cash 

register and therefore did not violate store policy by leaving a register unattended as did plaintiff. 

Plaintiff has not demonstrated that Brand is a similarly situated employee who was not terminated 

for similar conduct. Therefore, plaintiff failed to produce sufficient affirmative evidence to 

establish that the other employees he asserts as comparators were “similarly situated in all 

respects,” or that their conduct was of “comparable seriousness” to the conduct for which he was 

discharged. Accordingly, plaintiff failed to establish a prima facie case of discrimination on the 

basis of religion. 

3. Failure to accommodate his religious beliefs

The district court declined to rule on plaintiff’s claim of failure to accommodate his religion 

in violation of Title VII and the Tennessee Human Rights Act because the court concluded that 

plaintiff failed to address Lowe’s arguments in his opposition to Lowe’s summary judgment 

motion. 2018 WL 4181614, at *3. Plaintiff argues on appeal that the religious accommodation 

issue was raised in his response to the summary judgment motion as part of his religious 

discrimination claim. To establish a prima facie case of failure to accommodate, plaintiff must 

show that “(1) he holds a sincere religious belief that conflicts with an employment requirement;

(2) he has informed the employer about the conflicts; and (3) he was discharged or disciplined for 

failing to comply with the conflicting employment requirement.” Tepper, 505 F.3d at 514 (citation 

omitted). 

Under the circumstances here, the accommodation claim is indistinguishable from the 

discrimination claim discussed above. See Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th 

Cir. 1987) (“The analysis of any religious accommodation case begins with the question of whether 

the employee has established a prima facie case of religious discrimination.”). Regardless of 
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whether plaintiff abandoned the accommodation claim, it fails on the merits. Plaintiff cannot 

establish a prima facie case because he cannot show that his religious belief “conflicts” with any 

employment requirement. It is undisputed that he was never scheduled to work on Saturdays 

during his 14-year employment with Lowe’s, and he has not raised a genuine issue of material fact 

regarding whether he was discharged or disciplined for requesting an accommodation. 

4. Direct evidence of religious discrimination 

Plaintiff also claims he has direct evidence of religious discrimination. “[D]irect evidence is 

that evidence which, if believed, requires the conclusion that unlawful discrimination was at least 

a motivating factor in the employer’s actions.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 

2003) (quoting Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th 

Cir. 1999)). Such evidence “does not require a factfinder to draw any inferences in order to 

conclude that the challenged employment action was motivated at least in part by prejudice against 

members of the protected group.” Id.

2

 “[A] facially discriminatory employment policy or a 

corporate decision maker’s express statement of a desire to remove employees in the protected 

group is direct evidence of discriminatory intent.” Nguyen, 229 F.3d at 563 (citing Trans World 

Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)). Once a plaintiff establishes that “the 

prohibited classification played a motivating part in the [adverse] employment decision,” the 

employer then bears the burden of proving that it would have terminated the plaintiff “even if it 

had not been motivated by impermissible discrimination.” Id. (citing Price Waterhouse v. 

Hopkins, 490 U.S. 228, 244-45 (1989) (plurality opinion)). 

 

2 Plaintiff appears to be putting forth a “mixed-motive” theory, although he does not label it or analyze it. As the 

district court pointed out, plaintiff “presents several undeveloped, conflicting, and confusing arguments. It is not the 

Court’s job to sift through numerous filings and guess a party’s precise position or to develop a legal analysis that 

may lend support to that position.” 2018 WL 4181614, at *6 n.9. Because plaintiff did not adequately raise or argue 

a mixed-motive claim below, it is waived. See United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 

2009).
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The direct evidence on which plaintiff relies comes from his deposition testimony surrounding 

his meeting in the fall of 2015 when store manager Nick Green asked plaintiff to work Saturdays 

because the store was short-handed. Bolden Dep. at 47-51, 54, 58. At one point in his deposition, 

plaintiff asserts that Green threatened to fire him if he did not work Saturdays, but later conceded 

that Green did not threaten to terminate him but explained that he might need to switch to a 

department that was not so dependent on Saturday work. Id. at 62. It is undisputed that plaintiff

was not transferred or disciplined at this time, so he has shown no adverse employment action. 

Plaintiff also makes vague claims that a coworker, Adam Klaus, told plaintiff that he overheard 

Green say to assistant manager Vickery that Lowe’s needed to find a way to “get rid of [plaintiff] 

legally.” Id. at 54. Plaintiff also says that assistant manager Owens was “ticked off” because 

plaintiff would not work Saturdays, and said so. Id. at 49.

To the extent these alleged statements could be construed as direct evidence of discrimination,

they do not establish a causal connection between plaintiff’s protected activity and any adverse 

employment action. Where some time elapses between the employer’s alleged discriminatory 

conduct and the adverse employment action, the employee must couple temporal proximity with 

other evidence to establish causality. See Little v. BP Expl. & Oil Co., 265 F.3d 357, 365 (6th Cir. 

2001) (“[T]emporal proximity, when considered with the other evidence of retaliatory conduct, is 

sufficient to create a genuine issue of material fact as to” a causal connection.). The comments 

occurred in the fall of 2015 and plaintiff was terminated in July 2017. The only discipline plaintiff 

ever received before his 2017 termination was a written warning in early 2015, nine months before

the alleged statements were made by Green and Owens. Viewing the evidence in the light most 

favorable to plaintiff, we will assume the comments were made. But given the 20-month period 

between the comments and Bolden’s ultimate termination, and the lack of any other direct evidence 
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of discrimination, the allegations do not rise to the level necessary to survive summary judgment. 

Furthermore, plaintiff has not rebutted Lowe’s stated legitimate reason for terminating plaintiff—

his violation of the shoplifter policy. Plaintiff has not created a genuine issue of material fact 

based on his alleged direct evidence of discrimination.

B. Failure to accommodate disability

The district court granted summary judgment to Lowe’s on plaintiff’s claim of failure-toaccommodate under the Americans with Disabilities Act and the Tennessee Disabilities Act. Both 

the federal and state acts prohibit covered employers from discriminating 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); Tenn. Code Ann. § 8-50-103(b). 

The federal act also defines “discrimination” to include “not making reasonable accommodations 

to the known physical or mental limitations of an otherwise qualified individual with a disability.” 

42 U.S.C. § 12112(b)(5)(A). A claim brought under the Tennessee Disabilities Act is analyzed 

under the same principles as the federal act. Cardenas-Meade v. Pfizer, Inc., 510 F. App’x 367, 

369 n.2 (6th Cir. 2013). 

To establish a prima facie failure-to-accommodate claim, a plaintiff must show: (1) he is 

disabled as defined in the Americans with Disabilities Act; (2) he is otherwise qualified for the 

position, with or without a reasonable accommodation; (3) his employer knew or had reason to 

know of his disability; (4) he requested a reasonable accommodation; and (5) the employer failed 

to provide the reasonable accommodation. Cotuna v. Wal-Mart Stores, Inc., No. 16–2519, 2017 

WL 5171247, at *2 (6th Cir. Aug. 31, 2017). The employee bears the burden of requesting a 
Case No. 18-5928, Bolden v. Lowe’s Home Center, LLC

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reasonable accommodation and showing that the accommodation he seeks is objectively 

reasonable. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 870 (6th Cir. 2007). 

Plaintiff complains that Lowe’s did not accommodate him after he reinjured his ankle because 

it placed him on leave instead of reassigning him to a different job. According to the undisputed 

facts, plaintiff’s physician submitted an Accommodation Request Assessment Form stating 

plaintiff needed a “sedentary position as much as possible” and was restricted from carrying, 

pushing or pulling any weight whatsoever, squatting or kneeling whatsoever, and could only 

bend/stoop occasionally. Bolden Dep. at 124-42 & Ex. 10. Plaintiff argues that Lowe’s should 

have kept him working as a phone operator or in the office instead of placing him on unpaid leave. 

Plaintiff does not offer any evidence other than his opinion that there were full-time jobs as a phone 

operator or in the office, or that there were openings for those positions at the time he needed 

sedentary work. 

Lowe’s maintains that it does not have any jobs considered “sedentary.” Seay Decl. at ¶ 12. 

Due to the restrictions placed on plaintiff by his physician, Lowe’s could not safely accommodate 

plaintiff at any available job, such as at a cash register or customer service desk because those jobs 

require work that was in excess of his medical restrictions, and would not allow him to remain 

sedentary. Id. Plaintiff provided no facts to show he could perform the functions of any available 

jobs, such as cashier, and he did not demonstrate that his other suggestions, such as working as a 

phone operator or doing office work, allowed for reasonable accommodation consistent with his 

physician’s restrictions or that such jobs were even available. Instead, plaintiff accepted the unpaid 

leave of absence from October 14, 2016, until March 16, 2017. We have held that medical leave 

may constitute a reasonable accommodation under the Americans with Disabilities Act. See Cehrs 

v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998); Hankins v. The Gap, 
Case No. 18-5928, Bolden v. Lowe’s Home Center, LLC

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Inc., 84 F.3d 797, 801 (6th Cir. 1996). The district court did not err in finding that plaintiff failed 

to make a prima facie case of failure-to-accommodate under the Americans with Disabilities Act

or the Tennessee Disabilities Act.

For the foregoing reasons, we affirm the judgment of the district court.