NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 19a0530n.06
Case No. 1 9

- 5092
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ADRIANNE POPECK , Plaintiff

- Appellant ,

v. RAWLINGS, COMPANY, LLC ; DEBRA FORD
Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: SUTTON , COOK, and THAPAR , Circuit Judges. COOK, Circuit Judge. After the Rawlings Company fired Adrianne Popeck, she sued for discrimination , retaliation, unpaid wages, and wrongful opposition to her application for unemployment benefits. The district court granted the defendants summary judgment on most of Popeck’s claims

. We AFFIRM.
I. Rawlings provides accounting and financial services to health insur ers . In 2009, Popeck started working for Rawlings as a n auditor. In that role, she reviewed health insurance claims , identified inaccurate ones , and re

- billed the correct insurance company

. At first, she prospered at work . She landed a series of promotions , winning praise , awards , and a management position along the way

.Case No. 19

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- Beginning in 2013, however, things took a turn for the worse . That year, a doctor diagnosed Popeck with irritable bowel syndrome ( “ IBS ” ), a digestive disease that cause d her severe stomach cramping and sudden diarrhea. Rawlings granted Popeck permission to take intermittent leave under the Family and Medical Leave Act . The intermittent leave allowed Popeck to arrive to work late or leave early when needed to address her IBS symptoms. The next year , senior managers at Rawlings grew c oncerned with Popeck ’ s leadership of her team. Popeck ’ s supervisor complained that her team members came in late, took excessive breaks, left early, and generally underperformed. Popeck did not lead by example either ; Popeck’s supervisor found that she too indulged in “ excessive breaks. ” Concluding that she could not curb her team ’ s poor work habits , Rawlings demoted Popeck from her management position back down
to an entry

- level auditing position

. Throughout that year , Popeck continued to use intermittent leave under the FMLA , exhaust ing her annual allotment around November

. To help Popeck avoid missing work until her FMLA leave renewed in December, Rawlings invited her to apply for an accommodation under the Americans with Disabilities Act

. Popeck ’s doctor submitted the required paperwork , identif ying only one required accommodation : Popeck need ed to come in late or leave early when her IBS symptoms flared up

. Rawlings approved the accommodation until Popeck could resume
FMLA leave

. Popeck ’ s long breaks and absences from work continued to raise eyebrows

. In November 2014, Rawlings HR generalist (and defendant here) Debra Ford sent Popeck a formal notice of disciplinary action, stating that Popeck had “ accumulated excessive instances of tardiness and leaving early

. ” Within a five

- week period, the notice explained, she arrived to work late orCase No. 19

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- departed early fourteen times

. Popeck attributed her absences to various mishaps and personal pursuits (oversleeping, traffic, trick

- o r - treating with a friend’s child, etc.), none involving her IBS

. Popeck switched back to taking intermittent FMLA leave in December 2014

. The following year , Popeck ’ s work performance dwindle d

. S he failed to meet her performance goal
in all but two months

. That year, Popeck exhausted her FMLA leave by July. She again sought

an ADA accommodation as a bridge until her next period of FMLA eligibility. This time, however, Rawlings denied the proposed accommodation

. Despite lacking sick leave, annual leave, FMLA leave , and ADA leave, Popeck started miss ing work more than ever

. In September 2015, Ford issued Popeck a second formal notice of disciplinary action

. According to Ford , Popeck ’ s doctor said that she “ may need to come in late or leave early on occasion ” and made no mention of any need for full

- day absences. The disciplinary notice then stated that Popeck exceeded her annual FMLA leave by using all available 60 days and then accumulating an additional 33 days of absences , “ resulting in a 59% absenteeism
rate

. ” Ford warned Popeck that she could miss no more work until she either accrued leave or her
FMLA eligib ility renewed

. In November, Ford sent Popeck an email again admonishing her for taking lengthy breaks and arriving to work late

. Ford told Popeck: “ This is your final warning. ” Over the next several weeks, Popeck got to work late four more times. The fourth time , Rawlings fired her , citing her serial tardiness

. Popeck sued Rawlings and Ford , alleg ing that they violated: (1) the ADA and its Kentucky
state

- law counterpart; (2) the FMLA; (3) Ky. Rev. Stat. Ann. § 341.990(6)( a ) , a Kentucky statute prohibiting wrongful opposition to an application for unemployment benefits ; and (4) the FairCase No. 19

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- Labor Standards Act and its state

- law counterpart. The district court granted summary judgment to the defendants on all claims except for one of Popeck ’ s FLSA claims . Popeck appeals.
I I . We review the district court ’ s grant of summary judgment de novo, viewing the entire record in a light most favorable to the party opposing summary judgment and drawing all reasonable factual inferences in that party ’ s favor

. Dowling v. Cleveland Clinic Foun d. , 593 F.3d 472, 476 (6th Cir. 2010). An entry of summary judgment stands only 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). A. ADA Claims The ADA prohibits employers from “ discriminat[ing] against a qualified individual on the basis of disability [.] ” 42 U.S.C. § 12112(a). Popeck brings three claims under the ADA: disparate
treatment , failure to accommodate , and failure to engage in the interactive process

. All three claims require her to show that she is a “ qualified individual. ” See Terre v. Hopson , 708 F. App ’ x 221, 228 (6th Cir. 2017) (disparate treatment); Kleiber v. Honda of Am. Mfg., Inc. , 485 F.3d 862, 869 (6th Cir. 2007) (failu re to accommodate) ; Williams v. AT&T Mobility Servs. LLC , 847 F.3d 384, 395 (6th Cir. 2017) ( failure to engage in the interactive process)

. Under the ADA, “ qualified ” means the ability to “ perform the essential functions ” of a job

“ with or without reasonable accommodation. ” 42 U.S.C. § 12111(8). A “ reasonable accommodation ” may include “ job restructuring [and] part

- time or modified work schedules. ” Id. § 12111(9)(B). But no employer need excuse a disabled employee ’ s performance of a job ’ s

“ essen tial function s ” ; a proposed accommodation request ing the removal of an essential function is per se unreasonable. Brickers v. Cleveland Bd. of Educ. , 145 F.3d 846, 850 (6th Cir. 1998)

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- Because regular, i n - person attendance constitutes an essential function of most jobs, an employee who cannot meet a job’s attendance requirements usually cannot establish qualified

individual status

. E.E.O.C. v. Ford Motor Co. , 782 F.3d 753, 76 1

– 63 (6th Cir. 2015) (en banc)

. To determine whether Popeck can show qual ified

- individual status despite her inability to attend work regularly and in person , we ask two questions

. We start by asking whether regular, in

- person attendance constitutes an essential function for auditors at Rawlings. See Williams , 847 F.3d at 391 . If so, we then ask whether Popeck proposed a reasonable accommodation that would enable her to perform that function

. See i d. at 393; Ford Motor , 782 F.3d at 763. 1. Regular, In
- Person Attendance At Rawlings , a uditor s primarily review and audit healthcare claims. Auditors access information about those claims from secure computers in Rawlings’s offices. Rawlings prohibits

a uditors from working remotely because of the “ large volume of confidential and HIPAA protected personal information ” in the claims they review

. Popeck does not dispute those facts. Because a ll auditing work must be done on - site, in

- person attendance on a regular basis constitute s an essential function of Popeck ’ s job

. Pointing to other employees that Rawlings allow s to work remotely , Popeck sees a factual dispute about whether in

- person attendance constitute s an essential function. But Popeck ignores

a key difference : T hose other employees work in IT , not auditing

. Rawlings occasionally permit s certain IT workers remote access from home during night s and weekends. Rawlings has never allowed auditors accessing confidential information , like Popeck, to work remotely. Popeck’s inapt comparison creates no genuine dispute of fact.Case No. 19

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- 2. Reasonable Accommodation
W e turn to whether Popeck proposed a reasonable accommodation that would enable her
to attend work in person regularly

. See Ford Moto r , 782 F.3d at 763. In Ford Motor , we held the
IBS

- afflicted plaintiff ’ s proposed accommodation

— work ing from home for up to four days a week

— unreasonable because it was tantamount to an exemption from the regular, in

- person attendance requirement

. Id. Here, Popeck proposes an accommodation that seems more modest on its face: occasional flexibility to arrive late and leave early when her IBS symptoms flare

. Even a ssuming (contrafactually) that Popeck’s IBS caused all of her tardiness, early departure, excessive break

taking, and full

- day absence s , authorizing Popeck to arrive late or leave early on occasion would
not have come close to solving her attendance problem

. Recal l that by the end of her employment , Popeck missed work nearly 60% of the time

. Because s he evidently r equire s vastly more fl exibility and time off than she proposes , Popeck fail s to suggest an accommodation that would enabl e her
to attend work in person regularly

. See Williams , 847 F.3d at 39 3

– 94

. She thus cannot establish that she remains “ qualified ” for her job

. Ford Motor , 782 F.3d at 761. Absent such a showing, Popeck cannot sustain her ADA claims. The district court correctly granted summary judgment
to the defendants on those claims

. B. Confidentiality Violation under the ADA Popeck argues that she brought a claim alleging that Rawlings violated the ADA ’ s confidentiality provisions and that the district court erred in failing to consider it

. Rawlings responds that Popeck brought no such claim because she raised the confidentiality pr ovisions for the first time in moving for summary judgment.Case No. 19

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- Popeck ’ s complaint only off

- hand edly mention s the ADA ’ s confidentiality provisions. She alleges that Rawlings employees reviewed her “ confidential FMLA and ADA paperwork, ” that Popeck did not authorize this, and that th o se alleged actions “ violate[d] the company ’ s confidentiality policies. ” Th o se allegations address Rawlings ’ s purported violation of its internal policies, not the ADA ’ s confidentiality provisions

. Besides, Popeck presents those allegations during the general narrative portion of her complaint ; she fails to link them to any specific claim. The oblique reference to confidential ADA paperwork did not notify the defendants of a standalone claim founded on the ADA’s confidentiality provisions

. Parties may not obtain relief on legal claims raised for the first time in summary judgment briefings, so we will not consider Popeck’s argument here

. See Tucker v. Union of Needletrades, Indus., & Textil e Emps. , 407 F.3d 784, 789 (6th Cir. 2005). C . FMLA Interference Claim The FMLA forbids employers ’ interfering with an entitled employee’s exercise of rights under the act . 29 U.S.C. § 2615(a)(1). In the district court , Popeck advanced multiple theories of how Rawlings interfered with her FMLA rights

. But h er opening brief discusses only one theory , thereby abandon ing the others

. See Gehrisch v. Chubb Grp. of Ins. Cos. , 645 F. App ’ x 488, 494 (6th Cir. 2016). Popeck argues that Rawlings violated its regulatory duty to designate certain instances of leave as ADA leave rather than FMLA leave. She cites 29 C.F.R. § 825.702, which states that, as between the FMLA and ADA, “ [a]n employe r must . . . provide leave under whichever statutory provision provides . . . greater rights ” to the employee. Id. § 825.702(a). But Popeck established no entitlement to ADA leave, so Rawlings had no duty to grant her leave under that statute . The distr ict court correctly rejected Popeck ’ s claim

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- D . Retaliation Claims Popeck alleges that Rawlings retaliated against her

— by demoting and then firing her

— for engaging in protected activity under the ADA and the FMLA. To establish a prima facie case of retaliation, Popeck must show: (1) she availed herself of a protected rig ht ; (2) Rawlings knew she was doing so; ( 3 ) she suffered an adverse employment decision ; and ( 4 ) a causal connection existed between Popeck’s invocation of her rights and Rawlings’s adverse action

. See Seeger v. Cincinnati Bell Tel. Co. , 681 F.3d 274, 283 (6th Cir. 2012) (FMLA); Hibbler v. Reg ’ l Med. Ctr. at Memphis , 12 F. App ’ x 336, 340 (6th Cir. 2001) (ADA). If Popeck makes this prima facie showing, Rawlings must then produce a legitimate, nondiscriminatory reason for its action s . See Penny v. United P arcel Serv. , 128 F.3d 408, 417 (6th Cir. 1997). If Rawlings offers that explanation, Popeck needs to show that Rawlings ’ s reason

serve s only as “ a pretext to hide unlawful retaliation. ” Michael v. Caterpillar Fin. Servs. Corp. , 496 F.3d 584, 597 (6th Cir. 2007).
Even if Popeck established a prima facie case, Rawlings put forward legitimate, nondiscriminatory reason s for demoting and firing her. Rawlings demoted Popeck because her excessive breaks during the workday interfered with her leadership of h er team. D uring her demotion meeting, Popeck did not deny that she took excessive breaks or suggest that the breaks related to her IBS. Her supervisor explained that he “decided to demote [Popeck] based on her frequent, extended breaks, which caused her to be unable to fulfill her leadership duties as a Team Lead.” Rawlings thus had a legitimate reason for demoting Popeck. See Bowie v. Advanced Ceramics Corp. , 7 2 F. App ’ x 258, 263 (6th Cir. 2003) (concluding that lack of leadership and inappropriate on

- the

-

job breaks constitute legitime ground s for demotion ).Case No. 19

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- Same goes for Rawlings ’s decision to dismiss Popeck for her serial tardiness. Again, that’s a legitimat e, nondiscriminatory reason for termination. See Cecil v. Louisville Water Co. , 301 F. App ’ x 490, 502 (6th Cir. 2008)

. Popeck submitted no evidence challenging the record of her tardiness or suggesting that her tardiness resulted solely from her IBS

. Popeck contends that Rawlings ’ s proffered reasons amount to mere pretext. As to her demotion, Popeck points to evidence t hat the company does not strictly enforce its break policies and that other nondisabled workers took excessive breaks without consequence. That argument, though, does not address the crux of Rawlings ’ s proffered reason for demoting Popeck : her ineffective leadership of her team. Even if Rawlings tolerated excessive breaks f rom other employees, Popeck provides no evidence that Rawlings tolerated inadequate leadership from other team leaders. She fails to rebut Rawlings’s legitimate, nondiscriminatory reason for her demotion

. As to her termination, Popeck charges Rawlings with a “ shifting ” rationale , suggesting that Rawlings ’s proffered reason acted as cover for something else . But Rawlings ’ s reason has not changed : it repeatedly told Popeck that she would suffer disciplinary action “ up to and including termination ” for continued “ tardiness

. ” When Rawlings fired Popeck , it contemporaneously cit ed her tardiness

. We discern no shifting rationales that put Rawlings’s proffered reason in doubt. The district court correctly granted summary judgment to the defendants on Popeck’s retaliation
claims.
E . Interference with Unemployment Benefits Claim After Rawlings fired her, Popeck applied for unemployment benefits. In her application, she alleged that Rawlings fired her because it refused to accommodate her disability. Ford, on behalf of Rawlings, responded to Popeck’s unemployment application, asserting that the compa ny fired Popeck because of her absenteeism, tardiness, and excessive breaks. Ford also representedCase No. 19

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- that Popeck submitted no paperwork establishing a disability, so Rawlings had no duty to accommodate her. Popeck contends that the portion of Ford ’s response about Popeck’s disability paperwork
constitutes a false statement to the Kentucky Division of Unemployment Insurance , violating Ky. Rev. Stat. Ann. § 341.990(6)(a). That statute provides that “[a]ny person who knowingly make s a false statement or representation . . . to prevent or reduce the payment of benefits to any worker entitled thereto . . . [is] guilty of [a felony or misdemeanor, depending on the amount withheld].” Ky. Rev. Stat. Ann. § 341.990(6)(a). T he Kentucky S upreme Court has held that this ostensibly criminal statute (in combination with another state statute) creates a private right of action for claimants against purveyor s of false information when the false information leads to denial of benefits

. See Hickey v. Gen. Elec. Co. , 539 S.W.3d 19, 25 (Ky. 2018). Popeck argues that Rawlings and Ford violated this statute when Ford submitted paperwork
stat ing that Popeck “ has not submitted paperwork establishing a disability. ” To survive summary judgment, Pope ck must cite facts suggesting that Ford offered the disputed statement with the intention of preventing Popeck from receiving unemployment benefits. See Ky. Rev. Stat. Ann. § 341.990(6)(a). To that end, Popeck points to a smattering of circumstantial evidence: Rawlings grant ed her ADA leave in 2014 after Popeck submitted similar paperwork , Popeck asked to have her disability matters handled by a different HR generalist , Ford failed to attend the state age ncy hearing that determine d Popeck’s right to benefits , Rawlings did not contest the benefits of another worker fired for misconduct , and so on . In the aggregate, Popeck contends, she has proffered enough evidence to warrant putting the issue of Ford’s an d Rawlings’s intent to a jury. H er offering of irrelevant and nonprobative facts , however, fails to move t he needle; Popeck cites no evidence from which a reasonable jury could conclude that Ford sought to prevent PopeckCase No. 19

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- receiving benefits

. Indeed, the only direct evidence of Ford’s intent stands unrebutted: Popeck’s doctor certified that Popeck’s IBS caused no substantial limitation to a major life activity (a necessary showing to qualify for ADA protection), Ford testified in her deposition that she relied on the doctor’s certification in determining that Popeck’s paperwork did not establish a disability, and Ford “believed the statements to b e true [

. ] ” The district court correctly granted summary judgment to the defendants on this claim.
F . Popeck ’ s Other Claims
In the district court, Popeck also asserted claims under the Kentucky Wage and Hour Act, the Kentucky Civil Rights Act, the FLSA , a nd sought a declaration that Rawlings had forfeited its overtime exemption. Having failed to make any reference in her opening brief to any of these claims, Popeck abandoned them

. Gehrisch , 645 F. App’x at 494

. III . We AFFIRM

.