NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0181n.06
No. 16-6258
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DONALD BUSH, Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE COMPASS GROUP USA, INC., WESTERN DISTRICT OF KENTUCKY Defendant-Appellee. _____________________________/ BEFORE: CLAY, SUTTON, and GRIFFIN, Circuit Judges. CLAY, Circuit Judge. Plaintiff Donald Bush appeals from the order entered by the district court on July 13, 2016 granting summar y judgment to Defendant Compass Group USA, Inc. On appeal, Bush argues that the district co urt overlooked genuine issues of material fact as to his claims against Compass Group for: (i) di sability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12112 (“ADA”), an d the Kentucky Civil Rights Act, Ky. Rev. Stat. § 344.040 (“KCRA”); and (ii) unlawfu l retaliation under the Fam ily and Medical Leave Act, 29 U.S.C. § 2615 (“FMLA”), and the Kentucky Workers’ Compensation Act, Ky. Rev. Stat. § 342.197 (“KWCA”). He asks us to vacate the di strict court’s summary judgment order, and remand for trial. We have subject matter juri sdiction over this appeal pursuant to 28 U.S.C. § 1291. For the reasons set forth below, we AFFIRM the district court’s judgment.No. 16-6258

2 BACKGROUND I. Factual History
Donald Bush is a resident of the Loui sville, Kentucky area. For roughly two years between 2010 and 2012, Bush was employed as a ch ef manager by Eurest Dining Services, an entity controlled by Compass Group. His direct s upervisor was Bill Tardy, the District Manager for Eurest. Bush’s job duties as a chef manage r involved supervising a staff of six cooks, and providing food preparation and cateri ng services for Eurest’s clients. Bush was assigned to work
in the on-site café of one of Eurest’s clients, an insurance company called Kentucky Farm Bureau (“KFB”). On May 17, 2012, Bush sent an email to th ree high-ranking KFB mana gers: (i) notifying
them that he suffered from cervical/thoracic spondylosis, a degenerative back condition, (ii) informing them that he wished to attemp t to transfer to a less physically demanding job within Compass Group; and (iii) requesting thei r assistance in bypassing Bush’s supervisor, Tardy, because Bush predicted that Tardy would not be amenable to the transfer. 1 The full email
read as follows: I have been diagnosed with severe cer vical / thoracic spondylosis which has rapidly progressed since Oct 2011 and is negatively affecting me physically / emotionally both here and at home. I have another appointment at Norton Letherman Spine Center to be tested fo r Ankylosing Spondylit is due to current additional symptoms. Both conditions are chronic and pr ogressive, treatable, but not curable and require behavior modificat ions to slow the progression. In the best interests of us all I am trying to tran sfer to a new property in the Flick sector of Compass Group that is in need of a Chef Manager that is more manager / director than chef and has minimal cater ings. The position would not start until the new school year which will allow time for acclimating a new Chef Manager to KFB with a smooth transition. I feel that Bill Tardy will opp ose this and possibly even try to throw a stopper to it in which case I will need any assistance you can give. I have two large cater ings next week that I ha ve arranged additional labor for and will be able to get through without issue. I intended to discuss this with you at our next meeting. I apologize for any inconveniences and appreciate everything.

1 Bush later admitted that he had no basis for his belief that Tardy would block his transfer request.No. 16-6258

3 (R. 26-2, PageID # 300.) The KFB managers subse quently testified that they understood Bush’s email to mean that he pla nned to move on to another job by fall 2012, and that he would “provide for a smooth transition” for hi s replacement. (R. 26-4, PageID # 379.) Over the next several months, Bush appl ied for ten positions (including one position twice) within Compass Group, most of which w ould have been promotions over his chef manager position. Bush was rejected for each of these positions either b ecause he did not meet the position’s qualifications, or because the position was ultimately not filled due to business restructuring. While Bush was applying for new jobs in the second half of 2012, his physical condition deteriorated, and Bush provided Tardy with seve ral notes from his treating physicians ultimately limiting Bush to lifting no more than ten pounds. Bush testified during his deposition that the chef manager position regularly required him to lift up to fifty pounds—meaning that his back condition effectively prevented him from performing the physical duties associ ated with his job. In order to cover those duties, Bush hired additi onal temporary workers, which increased the cost of performing services for KFB. Curiously, during this same period, Bush repe atedly told KFB management that he could not perform his duties as chef manager, and that he wanted to transfer to a different position within Compass Group, even though KFB was not hi s employer. This left KFB concerned about Bush’s ability to both meet KFB’s catering requ irements, and to continue operating the Eurestrun café at KFB’s headquarters. On August 27, 2012, KFB asked Eurest to accelerate the transition to Bush’s replacement so that a reliable chef manager would be in place in time for KFB’s October board meetings. On September 13, 2012, Tardy placed a job po sting for a new chef manager. Tardy’s plan was to hire a new chef manager, and then ha ve Bush stay on temporarily at KFB to train the new hire while Bush looked for other work. Bush assisted Tardy in searching for a replacement chef manager by setting up cooking test s for prospective candidates.No. 16-6258

4 During one such test on October 25, 2012, Bu sh “cracked” when he realized that he would likely lose his job within Compass Group, and had “a nervous breakdown” that his “doctor said . . . was post traumatic stress diso rder.” (R. 26-2, PageID # 235.) Bush left during the test without informing Tardy or obtaining perm ission to miss the rest of the work day. Later that evening, Bush called KFB’s director and notified him that Bush would not come in the next morning to open KFB’s café. Bush checked into a hospital for psychiatric care on October 26, 2012. Tardy covered Bush’s job duties at KFB that day, and hired Bush’s replacement on October 29, 2012. After Bush’s breakdown on October 25, 2012, KFB management insisted to Eurest that Bush be replaced. Compass Group planned to give Bush six-to-eight weeks to try to find other employment, and then to terminate his em ployment at the end of that period. On October 29, 2012, Bush submitted a request for FMLA leave, which was granted for the period October 26, 2012 through January 18, 2013. Bush was rele ased to return to work by his doctors on December 7, 2012. Because Bush ha d been replaced, and KFB no longer wished to work with him, Bush remained on leave status and did not return to work as a chef manager. On January 7, 2013, Compass Group offered Bush a severance package, which he declined. Bush was laid off on January 10, 2013, retroactive to December 10, 2012. II. Procedural History On February 4, 2014, Bush brought suit agains t Compass Group in the Jefferson County, Kentucky Circuit Court, asserti ng claims for: (i) disability discrimination under the Americans with Disabilities Act and the Kentucky Civil Rights Act; (ii) unlaw ful retaliation under the Family and Medical Leave Act; and (iii) unlaw ful retaliation under the Kentucky Workers’ Compensation Act. Compass Group removed the suit to the Western Di strict of Kentucky. After extended discovery, Compass Group moved for summ ary judgment on all claims. On July 13, 2016, the district court grante d Compass Group’s summary judgment motion in its entirety. Bush v. Compass Grp. USA, Inc. , 194 F. Supp. 3d 580, 589 (W.D. Ky. 2016.) As to Bush’s workers’ compensation retaliati on claim, the district court determined thatNo. 16-6258

5 undisputed record evidence showed that Comp ass Group fired Bush because he could not
continue to function as a chef manager, and concluded that the four-to-eight month gap between when Bush reported his workplace in juries and his firing was insuffici ent to create a triable fact
issue. Id. at 585–86. The district court next dete rmined that Bush could not state a prima facie case of disability discriminati on because he admitted during his deposition that he was physically incapable of continuing as a chef mana ger, with or without accommodations. Id. at 587–88. Finally, the district court dismi ssed Bush’s FMLA retaliation cl aim because the record showed that Compass Group planned to fire Bush before he even decided to take FMLA leave. Id. at 588–89.
The district court en tered judgment against Bush the sa me day it released its summary judgment opinion. On August 8, 2016, Bush filed a timely notice of appeal. DISCUSSION I. Standard of Review
We review de novo the district court’s gran t of summary judgment. See, e.g. , Kelly Servs., Inc. v. Creative Harbor, LLC , 846 F.3d 857, 862 (6th Cir. 2017). A movant is entitled to “summary judgment if the movant shows that ther e is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). “When evaluating a summary judgment motion, the reviewi ng court must construe the facts in the light
most favorable to the non-movant.” Gillis v. Miller , 845 F.3d 677, 683 (6th Cir. 2017). A “genuine issue of material fact exists when there is sufficient ev idence for a trier of fact to find for the non-moving party.” Brown v. Battle Creek Police Dep’t , 844 F.3d 556, 565 (6th Cir. 2016). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986) (emphasis in original).No. 16-6258

6 II. ADA and KCRA Claims A. Qualified Individual with a Disability The Americans with Disabilities Act provides that “[n]o covered enti ty shall discriminate against a qualified individual on th e basis of disability in regard to job application procedures, the hiring, advancement, or discharge of em ployees, employee compensation, job training, and other terms, conditions, and privileges of employm ent.” 42 U.S.C. § 12112(a). Similarly, the Kentucky Civil Rights Act makes it an “unlawful practice” fo r an employer to “discharge any individual . . . because the person is a qualified indi vidual with a disability . . . .” Ky. Rev. Stat. § 344.040(1)(a). We “interpret Ke ntucky protections for the disabled consonant with the federal Americans with Disabilities Act,” Henderson v. Ardco, Inc. , 247 F.3d 645, 649 (6th Cir. 2001), except that the federal definition of a disability is broader than Kentucky’s definition by virtue of
the ADA Amendments Act of 2008. See Breen v. Infiltrator Sys. , 417 F. App’x 483, 486 (6th Cir. 2011) (“Although Congress recently expanded the definition of ‘r egarded as disabled,’ . . . that amendment has yet to be incorporated into th e Kentucky statute . . . so the pre-2008 ADA standards apply . . . .”). Because the parties conc ede that Bush is disabled within the meaning of both statutes, we will analyze Bush’s ADA and KCRA clai ms together. ADA discrimination claims are governed by the McDonnell Douglas burden-shifting
framework. See, e.g. , Talley v. Family Dollar Stores of Ohio, Inc. , 542 F.3d 1099, 1105 (6th Cir. 2008). Under that framework: (i ) the plaintiff must first “esta blish a prima facie case of discrimination;” (ii) then the defendant must arti culate legitimate, non-discriminatory reasons for its actions; and finally (iii) “the plaintiff must show by a preponde rance of the evidence that the proffered explanation is a pr etext for discrimination.” Id. “To prove a prima facie case of disability discrimination, a plaint iff must show that (1) he is disabled, (2) he is otherwise qualifie d to perform the essentia l functions of a position, with or without accommodation, and (3) he suffered an adverse employment action because of his disability.” Demyanovich v. Cadon Plating & Coatings, L.L.C. , 747 F.3d 419, 433 (6th Cir.No. 16-6258

7 2014). The plaintiff must prove that his disability was the “but-for” cause of his termination. Lewis v. Humboldt Acquisition Corp., Inc. , 681 F.3d 312, 321 (6th Cir. 2012) (en banc). The district court granted summary judgmen t against Bush’s ADA and KCRA claims at the first step of the McDonnell Douglas framework because it determined that Bush failed to
make out a prima facie case of disability discrimination. Bush , 194 F. Supp. 3d at 587–88. Specifically, the district court determined that Bush is not “otherwise qualified to perform the essential functions” of his prior chef manager job because: (i) the job requires him to be able to lift up to fifty pounds; and (ii) he is incapable of performing that sort of heavy lifting. Id. We agree with the district court that there is no genuine dispute as to whether Bush can perform the essential functions of his prior pos ition, with or without accommodations.
In order to determine whether Bush could meet the essential functions of the chef manager position, we must first determine what t hose essential functions are. EEOC regulations
define “essential functions” as “the fundament al job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). “A job function may be considered essential because: (1) the position exists to perform that function; (2) there are a limited number of employees available among whom the performance of that job function can be distributed; or (3) the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” Keith v. County of Oakland , 703 F.3d 918, 925 (6th Cir. 2013). “Factors to consider when determining whether a job function is essential to the pos ition include: (1) the employer’s judgment; (2) the written job description; (3) the amount of time spent performing the function; (4) the consequences of not requiring performance of the func tion; (5) the work experience of past incumbents of the position; and (6) the current work experience of incumbents in similar jobs.” Id. at 925–26. The written job description fo r Compass Group’s chef manager position states that while “performing the duties of this job, the employee is regularly required to stand; use hands to finger, handle, or feel; talk or hear; and taste or smell. The em ployee frequently is required to walk, sit, and reach with hands and arms. The employee must frequently lift and/or move up toNo. 16-6258

8 10 pounds.” (R. 30-1, PageID # 758.) Under the ADA, this description “shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). However, the written job description is “not dispositive.” Rorrer v. City of Stow , 743 F.3d 1025, 1039 (6th Cir. 2014). Rather, “the determination of whether physical qualifications are essen tial functions of a job requires the court to engage in a highly fact-specific inquiry” and must “reflect the actual functioning and circumstances of the particular enterp rise involved.” Hall v. U.S. Postal Serv. , 857 F.2d 1073, 1079 (6th Cir. 1988) (e mphasis in original). Ordinarily, the question of whet her a job function is essential “i s a question of fact that is typically not suitable for resolution on a motion for summary judgment.” Keith , 703 F.3d at 926. Thus, we will not grant summary judgment when the “evidence on the issue is ‘mixed.’” Rorrer , 743 F.3d at 1039 (quoting Feldman v. Olin Corp. , 692 F.3d 748, 755 (7th Cir. 2012)). Here, however, the record is not “mixed”—uncontroverted evidence shows that lifting up to fifty pounds was an essential part of Bush’s job duties. During his deposition, Bush confirmed that the written job description did not accurately reflect his actual job duties. Specifically, when asked about the description’s statement that candi dates needed to be able to lift up to ten pounds,
Bush stated that he “w as lifting and moving quite a lot more th an that.” (R. 30-1, PageID # 735.) Bush confirmed that he was required to move cas es of meat and fifty- pound bags of potatoes and sugar. ( Id. ) Moreover, Bush stated he was lifting heavy weights “for quite a bit of my employment” because he would have to assume th e duties of less senior cooks when they did not show up for work. ( Id. ) When asked if lifting heavy weight s “was essential” to his job, Bush responded “Yes. Yes.” ( Id. ) Further, in Bush’s post-deposition affidav it, Bush confirmed that his “actual job duties
were different from those in the written description” in that “[ w]hen shipments of stock arrived during service hours and all other employees were working/prepping their stations it was up to me to put away stock in its proper area as qu ickly as possible to maintain food and kitchen safety. These items were most often bulk pack aged and heavy such as 50lbs potatoes, 50lbs sugar, 50lbs flour, 35lb cases of #10 canned produc ts, 30lbs bag in box beverage products etc.”No. 16-6258

9 (R. 30-3, PageID # 803.) Bush also stated that when “performing entree multi course catering I would often have to carry and move tables an d chairs weighing well above 10lbs. I had to prepare and carry chaffers of food, move and se t up service stations, and man carving stations which involved lifting and carrying whole muscle m eats and 30+ lb cases of prime rib, turkeys,
and so on. I would also have to of ten tear everything down as well.” ( Id. PageID # 803–04.) Finally, Bush acknowledged that he “understood that both Kentucky Farm Bureau and Bill Tardy expected me to lift up to fifty pounds while cooking food and running catering events.” ( Id. PageID # 804.) In arguing that there is an issue of materi al fact regarding whet her heavy lifting was an essential part of his job duties, Bush points to sections of Tardy’s deposition testimony where Tardy explains that the chef mana ger position is mostly a supervisory role, and that most of the chef manager’s physical duties can be delegated to subordinates. But Tardy’s statements do not contradict Bush’s representations that heavy lifti ng was a regular and essent ial part of his job. Rather, they are consistent with Bush’s repres entations that he would have to perform heavy lifting when one of his subordina tes missed work, or when cateri ng events. We hold that no reasonable jury could find that heavy lifting was an inessential part of the chef manager job when Bush himself repeatedly admitted that it was essential. 2 Accordingly, we must determine whether ther e is a genuine factual dispute as to whether Bush could perform the essentia l functions of the chef manage r position—including lifting up to fifty pounds—with or without reasonable accommodations. Demyanovich , 747 F.3d at 433. The
record is clear that he coul d not perform these functions.

2 Bush cites Hall v. United States Postal Service to bolster his argument that a jury trial is needed to determine whether lifting up to fifty pounds was an essential part of Bush’s job, but Hall is easily distinguishable. In that case, th e plaintiff was not placed in a clerk position because he could not lift up to seventy pounds, as required by the written job description. Hall , 857 F.2d at 1075. But the plaintiff testified that he had never been required to do any heavy lifting as a clerk, and the employer’s only evid ence of the seventy-pound requirement was the job description; thus there was a genuine fact is sue as to whether such lifting was an essential part of the job. Id. at 1075, 1079. By contrast, Bush’s own deposition testimony clearly establishes that lifting up fifty pounds was a re gular and essential feature of his work.No. 16-6258

10 During his deposition, Bush consistently and re peatedly affirmed that he could not handle the physical demands of the chef manager position, even with accommodations. The following is a particularly illuminati ng passage that represents th e gist of Bush’s testimony: Q. Back condition?
A. Yeah. Q. That the company somehow fire d you from employment because of discrimination because of that disability?
A. Yes. Q. And that’s because even though you couldn’t go back and do the chef manager job because of the physical requirements that you think they should have hired you for one of these ten jobs that you applied for?
A. Yes. Q. But going back and doing the chef manager job was not something you could do?
A. No. Q. There’s nothing that they could do to help you do all those physical requirements either?
A. No. (R. 26-2, PageID # 267 (emphasis added).) However, in his post-deposition affidavit, Bush walked back his deposition testimony by stating that at all times he “was able to perform the duties of a ch ef manager, as described in the written job description,” even though he went on to state that the written job description did not accurately describe the weight lifting requireme nts for the position. (R. 30-3, PageID # 803.)
Bush further stated that he “c ould have continued to work as a chef manager at Kentucky Farm Bureau if [he] did not have to lift items heavier than 10 pounds.” ( Id. PageID # 804.) Bush argues that there is a genuine dispute as to whether he can perform the duties of a chef manager because: (i) his post- deposition affidavit states that he could perform those duties as long as Compass Group provided him with additio nal laborers to help with the heavy lifting; and (ii) in his deposition, Bush testified that he actually performed the heavy-lifting aspects of his job—albeit with pain—after his back conditi on manifested. The district court refused toNo. 16-6258

11 consider his post-deposition affidavit because it contradicted his deposition testimony, and
further found that there was no di spute that Bush coul d not function as a ch ef manager because he repeatedly said as much during his deposition.
The district court’s refusal to consider the a ffidavit was proper. We have long held that a “party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v. Sears, Roebuck
& Co. , 790 F.2d 453, 460 (6th Cir. 1986). In determin ing whether to credit a post-deposition affidavit, we consider whether the affidavit directly contradicts prior deposition testimony. Aerel, S.R.L. v. PCC Airfoils, L.L.C. , 448 F.3d 899, 908 (6th Cir. 2006). “A directly contradictory affidavit should be stricken unless the party oppos ing summary judgment provides a persuasive justification for the contradiction.” Id. “If, on the other hand, there is no direct contradiction, then the district co urt should not strike or disregar d that affidavit unless the court
determines that the affidavit ‘constitutes an attempt to create a sh am fact issue.’” Id. (quoting
Franks v. Nimmo , 796 F.2d 1230, 1237 (10th Cir. 1986)). In de termining whether the affidavit is a sham, we consider a “nonexhaus tive list of factors” including “whether the affiant was crossexamined during his earlier testimony, whether the a ffiant had access to the pe rtinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts to explain.” Id. at 908–09 (quoting Franks , 796 F.2d at 1237). Here, Bush’s affidavit directly contradi cted his deposition testimony in a key way. During his deposition, Bush answered “No” when asked whether any accommodations would allow him to perform the physical duties of his chef manager position. (R. 26-2, PageID # 267.) In his affidavit, Bush stated that he “could ha ve continued to work as a chef manager” if Compass Group provided him an “accommodation” by hi ring “dependable labor to do the lifting and carrying for me.” (R. 30-3, PageID # 804). These statements directly contradict one another, and therefore not only did the distri ct court properly decline to consider theNo. 16-6258

12 contradictory statements in the affidavit, the dist rict court would have been justified in striking the affidavit entirely. Aerel , 448 F.3d at 908; Reid , 790 F.2d at 460. Further, Bush’s testimony during his depositi on that he had performed heavy lifting with pain after his back injury, and therefore could ha ve continued in the chef manager role, does not create a genuine factual dispute. As Compass Group rightly argues, the fact that Bush was able to continue his job duties for a time after hi s back problems started does not contradict the
evidence in the record that Bu sh’s back injury eventually worsened, and by the time he was terminated, his doctor had re stricted him to lifting no more than ten pounds. Moreover, at best, Bush has demonstrated that his deposition test imony was internally contradictory—he repeated ly stated that he c ould not perform the physi cal requirements of his job, but implied at other times that he had met those requirements even after his back condition arose. Courts have repe atedly held that a plaintiff’s intern ally contradictory deposition testimony cannot, by itself, create a genuine dispute of material fact. See, e.g. , Pina v. Children’s Place , 740 F.3d 785, 799 (1st Cir. 2014) (holding that summary judgm ent was appropriate where plaintiff’s admissions in depos ition undermined her claims); Jeffreys v. City of New York , 426 F.3d 549, 555 (2d Cir. 2005) (affirming summary judgment where plaintiff’s deposition testimony was “replete with incons istencies” (citation omitted)); United States v. 1980 Red
Ferrari , 827 F.2d 477, 480 n.3 (9th Cir. 1987) (affirming summary judgment where only evidence was plaintiff’s “incredible a nd contradictory” deposition testimony); Hayes v. Norfolk S. Corp. , 25 F. App’x 308, 314 (6th Cir. 2001) (holdi ng that appellant’s “contradictory” and “confused” testimony was insuffici ent to create fact issue). Although th e non-moving party is
entitled to all reason able inferences when evaluating a summary judgment motion, when a plaintiff’s claims are only suppor ted by his “own contradictory a nd incomplete testimony . . . no reasonable person would undertake the suspension of disbelief necessary to credit the allegations made in his complaint.” Jeffreys , 426 F.3d at 555 (citation and alteration omitted). Because Bush’s own deposition testimony consistently a nd repeatedly proclaimed that he could notNo. 16-6258

13 function as a chef manager, even with accommoda tions, we hold that no reasonable jury could
find in Bush’s favor on his disa bility discrimination claims. B. Reasonableness of Accommodations Although Bush’s failure to make a prima facie showing of disabili ty discrimination is fatal to his claim, we note that even if Bush ha d made such a showing, his claims would still fail because the accommodations he requested from Compass Group were not reasonable. “A disabled employee who claims that he or she is otherwise qualified with a reasonable accommodation ‘bears the initial burden of propos ing an accommodation and showing that that accommodation is objectively reasonable.’” Hedrick v. W. Reserve Care Sys. , 355 F.3d 444, 457 (6th Cir. 2004) (quoting Cassidy v. Detroit Edison Co. , 138 F.3d 629, 633–34 (6th Cir. 1998)). In this suit, Bush has proposed two potential accommodations: (i) Compass Group could have hired additional staff to perform all of Bush’s heavy physical labor for him; or (ii) Compass Group could have transferred him to one of the ten positions with in the organization that he applied for. Neither of these accommodations are objectively reasonable. We have consistently held that a proposed accommodation requesting that an employer remove “an ‘essential function’ from the position . . . is per se unreasonable.” E.E.O.C. v. Ford Motor Co. , 782 F.3d 753, 761 (6th Cir. 2015) (quoting Brickers v. Cleveland Bd. of Educ. , 145 F.3d 846, 850 (6th Cir. 1998));
see also 29 C.F.R. Part 1630.2(o) App’x (“An employer . . . is not required to reallocate essential functions.”). As explained earli er, lifting more than fifty pounds is an essential function of a chef manager; a ccordingly, it is per se unreasonable for Bush to request that Compass Group assign these aspects of his job to someone else. Ford , 782 F.3d at 761. Moreover, Bush’s request to be re-assign ed to the vacant positions within Compass Group that he applied for was al so unreasonable. We have he ld that: (i) the “ADA does not require an employer to offer an employee a promotion as a reasonable accommodation;” and (ii) an employer is not “required to waive le gitimate, non-discriminato ry employment policies . . . in order to accommodate a disabled employee.” Hedrick , 355 F.3d at 457. All of theNo. 16-6258

14 positions Bush applied for except one would have constituted promotions over his chef manager position. 3 And Bush disqualified himself from the one lateral position he applied for because he violated company policy by failing to inform Tardy that he was requesting a transfer. Accordingly, because re-assigning Bush to any of the positions he sought would have required Compass Group to promote him or waive its non-di scriminatory transfer policy, this requested
accommodation was unreasonable as a matter of law. 4 Id. III. FMLA Claim We have explained the framework g overning FMLA claims as follows: The FMLA enables employees covered by the Act to take up to twelve weeks of leave per year for various purposes spec ified in the statute, including the employee’s own “serious health conditi on that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A “serious health conditi on” is defined as “an illness, injury, impairment, or physical or mental conditi on that involves (A) inpatient care in a hospital, hospice, or residential medical ca re facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). At the expiration of the employee’s leave period, she must be re instated to her position or to a position equivalent in pay, benef its, and other terms and conditions of employment. 29 U.S.C. § 2614(a)(1). Bryson v. Regis Corp. , 498 F.3d 561, 569–70 (6th Cir. 2007). Two distinct theories for recovery on FM LA claims exist. The “entitlement” or “interference” theory arises from § 2615(a) (1), which states th at “[i]t shall be

3 In late 2012, Compass Group’s HR staff discussed the possibility with Bush of having him serve as an ad hoc auditor for one of Eurest’s account s until he could secure permanent employment. At oral argument, Bush’s counsel argued that Compass Group should have accommodated Bush by solidifying this hypothetical auditor role as a new, full-time position and offering Bush that job. We re ject this argument. The ADA “does not require employers ‘to create new jobs . . . in order to accommodate a disabled individual.’” Kleiber v. Honda of Am. Mfg., Inc. , 485 F.3d 862, 869 (6th Cir. 2007) (quoting Burns v. Coca-Cola Enters., Inc. , 222 F.3d 247, 257 (6th Cir. 2000)).
4 Aka v. Washington Hospital Center , 156 F.3d 1284, 1300–01 (D.C. Cir. 1998) (en banc), does not support Bush’s argument that Compass Group violated the ADA by failing to give him one of the ten jobs he applied for. Aka merely held that a plaintiff has statutory standing to pursue an ADA claim based on an empl oyer’s failure to reassign the plaintiff to a vacant position as long as the plaintiff can perf orm the essential duties of the new job with reasonable accommodations. Id. It does not hold that employers are required to place disabled employees in positions they are not qualified for, or that would constitute promotions; thus, Bush cannot benefit from Aka ’s reasoning.No. 16-6258

15 unlawful for any employer to interfere with, rest rain, or deny the exercise of or the attempt to exercise, any right provi ded in this subchapter,” and from § 2614(a)(1), which provides that “any e ligible employee who takes leave . . . shall be entitled, on return from such leave (A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivale nt position.” The “retaliation” or “discrimination” theory arises from § 2615( a)(2), which provides that “[i]t shall be unlawful for any employer to discharg e or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” Arban v. W. Pub. Corp. , 345 F.3d 390, 400–01 (6th Cir. 2003). Bush is pursuing an FMLA retaliation theory based solely on circumstantial evidence. “Absent direct evidence of unlawful conduct, FMLA-retaliation claims are evaluated according to the tripartite burden-shif ting framework announced in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).” Bryson , 498 F.3d at 570. A plaintiff “can make out a prima facie case of discrimination by showing that (1) she availed herself of a protected right under the FM LA by notifying [the employe r] of her intent to take leave, (2) she suffered an adverse empl oyment action, and (3) that there was a causal connection between the exercise of her rights under the FMLA and the adverse employment
action.” Edgar v. JAC Prods., Inc. , 443 F.3d 501, 508 (6th Cir. 2006). Compass Group conceded before the district court that Bush has made out the first two
elements of a prima facie FMLA retaliation claim. Bush , 194 F. Supp. 3d at 589. However, the
district court determined that Bush failed to create a genuine dispute as to whether his termination was causally related to his FMLA leav e because “the wheels were in motion for [his] termination before he left on October 25, 2012.” Id. We agree. The sole evidence that Bush points to in arguing that his termination was causally related
to his FMLA leave is that he was laid o ff on January 10, 2013 (back dated to December 10, 2012)—about one month after hi s leave expired on December 7, 2012. This “Circuit has embraced the premise that in certain distinct cases where the temporal proximity between the protected activity and the adverse employment action is acutely near in time, that close proximity is deemed indirect evidence such as to permit an inference of retaliation to arise.” DiCarlo v.
Potter , 358 F.3d 408, 421 (6th Cir. 2004), abrogated on other grounds by Gross v. FBL Fin.No. 16-6258

16 Servs., Inc. , 557 U.S. 167, 180 (2009); Krumheuer v. GAB Robins N.A., Inc. , 484 F. App’x 1, 5 (6th Cir. 2012) (“[W]e have concluded that tempor al proximity alone is sufficient to establish a prima facie case of FMLA retaliation.”). 5 However, contrary to Bush’s implicit assu mption, the relevant timeframe for us to consider in determining whether there was a ca usal connection between the plaintiff’s FMLA leave and the adverse employment action is the “time after an employer learns of a protected activity,” not the time after the pl aintiff’s FMLA leave expires. See, e.g. , Mickey v. Zeidler Tool
& Die Co. , 516 F.3d 516, 525 (6th Cir. 2008); Krumheuer , 484 F. App’x at 5. The record shows that Compass Group learned of Bush’s FMLA leave on October 29, 2012—approximately twoand-one-half months before he was terminate d. The “more time that elapses between the protected activity and the adverse employment action, the more th e plaintiff must supplement his
claim with ‘other evidence of retaliatory conduct to establish causality.’” Vereecke v. Huron Valley Sch. Dist. , 609 F.3d 392, 400 (6th Cir. 2010) (quoting Mickey , 516 F.3d at 524–25).

5 Curiously, although temporal proximity evidence is sufficient to establish a prima facie case of FMLA retaliation, DiCarlo , 358 F.3d at 421, we have held that “temporal proximity is insufficient in and of itself to establish th at the employer’s nondiscriminatory reason for discharging an employee was in fact pretextual.” Skrjanc v. Great Lakes Power Serv. Co. , 272 F.3d 309, 317 (6th Cir. 2001); see also Krumheuer , 484 F. App’x at 5 (explaining this Circuit’s inconsistent approach regarding the sufficiency of temporal proximity in FMLA retaliation claims). This is an oddi ty in our case law; ordinarily, a prima facie showing of discrimination under the McDonnell-Douglas framework “is sufficient to support an inference of discrimination at trial.” Chen v. Dow Chem. Co. , 580 F.3d 394, 400 n.4 (6th Cir. 2009); see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 149 (2000) (“[B]ecause a prima facie case and sufficient evidence to reject the em ployer’s explanation may permit a finding of liability, the Court of Appeals er red in proceeding from the premis e that a plaintiff must always introduce additional, independent evidence of discrimination.”). Thus, DiCarlo and Skrjanc cannot both be correct; either temporal proximity evidence is sufficient to both establish a prima facie showing of FMLA retaliatio n, and rebut an employer’s pr offered non-discriminatory reasons for the adverse employment action, or it is insufficient to do either. We need not resolve this conflict now, however, because the alleged temporal proximity betw een Bush’s FMLA leave and his termination does not establish a prima facie showing of retaliation when viewed against the record as a whole.No. 16-6258

17 In this case, Bush put forward no other evid ence to support his FM LA retaliation claim,
and the uncontested evidence in the record overwhe lmingly undermines his claim. Bush himself
summarized the fatal flaw with his FMLA reta liation theory in hi s appellate briefing: Much of the evidence indicates that Com pass Group terminated Bush to please its client KFB and to make sure it c ould keep charging KFB for services . It has also claimed that Bush refused to work for Ta rdy and therefore Bush himself chose to be terminated. (App. R. 20 at 51 (emphasis added).) This is an accurate summary of th e record. On October 25, 2012, after Bush left work without notice in th e middle of the “chef test” for his potential replacement, Lisa Daniszewski—a member of Compass Group’s huma n resources staff— acknowledged that “the client [KFB] [was] insistent on [Bush’s] removal and will not further discuss,” and laid out a plan for transitioning Bu sh out of the chef manager position. (R. 30-6, PageID # 828.) However, to put it bluntly, it was not illegal for Compass Group to fire Bush to please a client. 6 Rather, Bush was required to put forward evidence showing that Compass Group fired him for exercising his FM LA rights, and his failure to do so is fatal to his claims. Moreover, the record shows that Compass Group had deci ded to terminate Bush’s employment before he even notified Compass Gr oup of his intent to take FMLA leave. On October 25, 2012, Daniszewski stated that Co mpass Group’s plan was to send Bush the paperwork for a leave of absence in case he wanted to take such leave, “a nd have him help out at
other accounts while he continues to look for work intern ally and externally. If this continued on for more than 6-8 weeks, [Compass Group] would l ook at enhanced severa nce with a release of claims.” ( Id. )

6 Federal civil rights law generally does not interfere with an employer’s ability to terminate employees for legitimate business reasons, su ch as the desire to retain a client, as long as the termination was not substantially motivat ed by improper discrimination. Thus, a business may terminate an employee because he has a poor working relationship with a client, but not because the client refuses to work with persons of the employee’s race. In this case, the record shows that Bush was fired because KFB no l onger thought him reliable, and Compass Group did not have a position for him elsewhere —not because he took FMLA leave.No. 16-6258

18 In other words, uncontested record evid ence shows that on October 25, 2012, Compass Group was planning on terminating Bush’s employment as a chef manager in six-to-eight weeks if he did not secure another pos ition internally or externally. Compass Group did not learn of
Bush’s intent to take FMLA leave until October 29, 2012. Theref ore, the record clearly rebuts any inference that Bush was fi red in retaliation for taking FMLA leave, because Compass Group had decided to let him go four days prior to learning that he would take such leave. Accordingly,
we hold that the district cour t did not err in gran ting summary judgment against Bush’s FMLA
retaliation claim. IV. KWCA Claim The Kentucky Workers’ Compensation Act provi des that no “employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim” for workers’ compensation benef its. Ky. Rev. Stat. § 342.197(1). In KWCA cases “where there is no direct evidence of retaliation, as is the case here, the burden of production and persuasion follows the familiar McDonnell Douglas framework.” Ky. Dep’t of Corrs. v. McCullough , 123 S.W.3d 130, 133–34 (Ky. 2003); Dollar Gen. Partners v. Upchurch , 214 S.W.3d 910, 915–917 (Ky. Ct. App. 2006). A plaintiff can establish a prima facie case of workers’ compensation discrimination through “proof that: (1) he engaged in a protec ted activity; (2) the defendant knew that the plaintiff had done so; (3) adverse employment acti on was taken; and (4) th at there was a causal connection between the prot ected activity and the adve rse employment action.” Dollar Gen. , 214 S.W.3d at 915. The parties agree that Bush has satisfied the first three elements, but the
district court found that there wa s no genuine issue as to whethe r Bush’s termination was caused by his workers’ compensation claims. Bush , 194 F. Supp. 3d at 587. “The plaintiff is not required to demonstrate that the sole or even the primary reason for the termination was related to the protected activity but only that its pursuit was a ‘substantial and motivating factor’ in the decision to terminate.” Dollar Gen. , 214 S.W.3d at 915. “In most cases, this requires proof that (1 ) the decision maker responsible for making the adverse decisionNo. 16-6258

19 was aware of the protected activity at the time th at the adverse decision was made, and (2) there is a close temporal relationship between the protected activity and the adverse action.” Brooks v. Lexington-Fayette Urban Cty. Hous. Auth. , 132 S.W.3d 790, 804 (Ky. 2004). “The sooner adverse action is taken after the protected activity, the stronger the implication that the protected activity caused the adverse action, particularly if no legitimate reason for the adverse action is
evident.” McCullough , 123 S.W.3d at 135. In determining wh ether temporal proximity between the plaintiff’s benefits claim a nd his firing is sufficient to sust ain a retaliation claim, we must
“view the time between the two events in th e context of the entire circumstances.” Dollar Gen. , 214 S.W.3d at 916.
Bush’s sole evidence of KW CA retaliation is the alleged temporal proximity between the instances where he reported his workplace in jury to Compass Group, and his firing. Bush reported workplace injuries on May 11, May 31, August 3, and August 16, 2012, and was fired on January 10, 2013. 7 Thus, he was fired between four an d eight months after he made each respective injury report. This temporal proximity does not raise a triable fact issue as to whether Bush was discharged for pursuing workers’ compensation claims for two reasons. First, under Kentucky law, temporal proximity between a worker’s protected activity and an adverse employment action is generally insufficient to sustain a retaliat ion claim where, as here, the plaintiff “does not point to any other facts or circumstances which would support an inference that [the employer] retaliated against [the plaintiff] based on [the workers’ compensation] claim.” See Collins v. Sapphire Coal Co. , No. 2010–CA–000690–MR, 2011 WL 4633099, at *3 (Ky. Ct. App. Oct. 7, 2011) (affirming grant of summary judgment on wo rkers’ compensation retaliation claim where

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

20 plaintiff pointed to no other evidence of retali ation other than three month gap between claim and firing). Second, Bush has not shown that his worker s’ compensation claims were a “substantial and motivating factor” in his disc harge, because the record provide s a plethora of evidence that Compass Group fired him for legitimate reasons. Dollar Gen. , 214 S.W.3d at 915. As discussed earlier, Bush admitted that he could not perform the essential job duties of a chef manager. See Henderson v. Ardco, Inc. , 247 F.3d 645, 654 (6th Cir. 2001) (affirming summary judgment on Kentucky workers’ compensation re taliation claim where record ev idence showed that plaintiff would have been fired because of her post-inju ry physical limitations regardless of workers’ compensation claim); Southerland v. Hardaway Mgmt. Co., Inc. , 41 F.3d 250, 256 (6th Cir. 1994) (affirming summary judgment on Kentucky workers’ compensation retaliation claim where “the evidence support[ed] the defendant’s asse rtion that the plaintiff was discharged solely because of her inability to perform her job” ). And moreover, Compass Group’s decision to
terminate Bush was cemented when he walked off his job without permission, and Compass Group’s client (KFB) demanded his removal. See Wells v. Huish Detergents, Inc. , 19 F. App’x 168, 178 (6th Cir. 2001) (affirming summary j udgment on Kentucky workers’ compensation retaliation claim where the “evidence clearly demons trate[d] that [the plaintiff] would have been discharged regardless of his injury” because “he violated Company policy”). The relatively long gap between Bush’s workers’ compensation claims and his termination is simply not enough to support a viable retaliation claim in light of the unrebutted record evidence showing that he was fired for nondiscriminatory reasons. CONCLUSION For the foregoing reasons, we hold that the district court correctly granted summary judgment against Bush’s disability discri mination, FMLA retaliation, and workers’ compensation retaliation cl aims. Accordingly, we AFFIRM the district court’s judgment.