Hay v. Community Health Systems, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KATRINA HAY,
Plaintiffs,
v.
COMMUNITY HEALTH SYSTEMS,
INC. and ACCESS CENTER
SERVICES, LLC,
Defendants.
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Case No. 3:24-cv-00608
Judge Aleta A. Trauger
MEMORANDUM
Before the court are Motions for Summary Judgment filed by defendants Access Center
Services, LLC (“ACS”) (Doc. No. 31) and Community Health Systems, Inc. (“CHSI”) (Doc. No.
34). For the reasons set forth herein, ACS’s motion will be granted in part, and CHSI’s motion
will be granted in its entirety.
I. 	LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, any party “may move for summary judgment,
identifying each claim or defense . . . on which summary judgment is sought.” Fed. R. Civ. P.
56(a). “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id.
By its very terms, Rule 56 anticipates “that the 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). In other words, even if genuine,
a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating
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a motion for summary judgment. On the other hand, “summary judgment will not lie if the dispute
about a material fact is ‘genuine.’” Id. at 248.
“[A] fact is ‘material’ within the meaning of Rule 56(a) if the dispute over it might affect
the outcome of the lawsuit under the governing law.” O’Donnell v. City of Cleveland, 838 F.3d
718, 725 (6th Cir. 2016) (citing Anderson, 477 U.S. at 248). A dispute is “genuine” “if the evidence
is such that a reasonable jury could return a verdict for the non-moving party.” Peeples v. City of
Detroit, 891 F.3d 622, 630 (6th Cir. 2018).
In ruling on a motion for summary judgment, it is not the judge’s function to make
credibility determinations, “weigh the evidence[,] and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. In determining
whether a genuine issue of material fact exists, the court must assume as true the evidence of the
nonmoving party and draw all reasonable inferences in that party’s favor. Id. at 255; Tolan v.
Cotton, 572 U.S. 650, 660 (2014). However, the “mere existence of a scintilla of evidence in
support of the” nonmoving party is not sufficient to avoid summary judgment. Anderson, 477 U.S.
at 252. “There must be evidence on which the jury could reasonably find for the [nonmoving
party].” Id. The inquiry, therefore, “asks whether reasonable jurors could find by a preponderance
of the evidence that the” nonmoving party is entitled to a verdict. Id.
II. 	PROCEDURAL HISTORY
Plaintiff Katrina Hay initiated this lawsuit on May 15, 2024, asserting claims for sex
discrimination and pregnancy discrimination in violation of the Tennessee Human Rights Act
(“THRA”), Tenn. Code Ann. § 4-21-101 et seq., and Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., as amended by the Pregnancy Discrimination Act
(“PDA”), 42 U.S.C. § 2000e(k). (Doc. No. 1 at 1.) She also asserts claims for discrimination,
retaliation, failure to accommodate, and failure to engage in the interactive process, in violation of
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the Tennessee Pregnant Workers Fairness Act (“TPWFA”), Tenn. Code Ann. § 50-10-101 et seq.,
and interference, retaliation, and failure to reinstate under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq. The plaintiff sues both ACS and CHSI, asserting that they
both employ 500 or more employees and that they acted as “joint employers and/or an integrated
enterprise, each of which had the authority to, and did, determine the terms and conditions of Ms.
Hay’s employment.” (Doc. No. 1 ¶ 25.)
Following the closure of discovery, both defendants filed their Motions for Summary
Judgment, accompanied by Memoranda of Law (Doc. Nos. 32, 44), Statements of Undisputed
Material Fact (“SUMFs”) (Doc. Nos. 33, 45), and the evidentiary material cited in their SUMFs
or Reply briefs (Doc. Nos. 31-1 through 31-11, 34-1 through 34-9, 48-1 through 48-4, 54-1 through
54-2). For its part, ACS concedes that it employed the plaintiff, but it argues that it is nonetheless
entitled to summary judgment based on the undisputed facts. CHSI, while also “incorporat[ing] by
reference and adopt[ing] the arguments set forth by ACS,” argues that it should be dismissed from
this case because it did not employ the plaintiff, or jointly employ the plaintiff with ACS, and that
CHSI and ACS are not an “integrated enterprise.” (Doc. No. 35 at 15, 14.)
The plaintiff opposes both motions (Doc. Nos. 43, 51), arguing substantively that material
factual disputes preclude summary judgment for ACS, while also continuing to maintain that CHSI
is jointly liable with ACS for employment discrimination. She also filed a Response to each
defendant’s SUMF (Doc. Nos. 42, 52), and additional or overlapping evidentiary material (Doc.
Nos. 41-1 through 41-12, 51-1 through 51-3). Both defendants filed Reply briefs (Doc. Nos. 48,
53), and the plaintiff, with permission, filed a Surreply (Doc. No. 55) to address arguments
allegedly raised for the first time in ACS’s Reply.
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III. 	ACS’S MOTION
A. 	Facts1
ACS, among other activities, is responsible for coordinating medical transfers for patients
from one CHSI-affiliated hospital to another CHSI-affiliated hospital or, if medically necessary,
to a non-CHSI-affiliated hospital. To carry out these medical transfers, ACS is staffed with
“Transfer Coordinators,” all of whom are classified as either full-time, part-time, or “PRN”2
employees.
Plaintiff Katrina Hay began working at ACS in January 2021 as a full-time Registered
Nurse Transfer Coordinator. In her role as Transfer Coordinator, Hay reported to Jyothirmayee
(“Jyothi”) Challa (ACS Transfer Center Manager), who reported to Patricia Galbreath (Senior
Director of Access Center), who reported to Jennifer McClure (Vice President of Access &
Transfer Center Services for ACS).
Full-time coordinators, like Hay, typically work at least thirty-six hours per week, in three
twelve-hour shifts, while part-time coordinators work two twelve-hour shifts, or twenty-four hours
per week. (Doc. No. 31-4, Galbreath Indiv. Dep. 22–23.) The “regular shifts for RN transfer
coordinators” are “7a-7p, 12 to 12, 12 noon to 12 midnight, and then 7p to 7a.” (Doc. No. 41-4,
Galbreath Rule 30(b)(6) Dep. 61.) According to Patricia Galbreath, no part-time Transfer
Coordinators work less than twenty-four hours per week or “in some way other than two 12-hour
shifts.” (Galbreath Indiv. Dep. 24.) Hay, when she was employed as a full-time coordinator,
1 The facts for which no citation is provided are drawn directly from the plaintiff’s
Response to ACS’s Statement of Undisputed Material Facts (Doc. No. 42) and are undisputed, at
least for purposes of summary judgment.
2 “PRN” is an abbreviation of the Latin term “pro re nata,” meaning “as needed” or “as the
circumstances require. See https://www.merriam-webster.com/dictionary/prn. (See also Doc. No.
31-4, Galbreath Dep. 24 (“PRN means as needed.”).)
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worked a minimum of three twelve-hour shifts per week, either 7 p.m. to 7 a.m., noon to midnight,
or 7 a.m. to 7 p.m. (Doc. No. 31-2, Hay Dep. 52–53.)
In addition, Hay often “picked up overtime” by working “short shifts.” (Id. at 55.) She
explained that the Transfer Coordinators were “so busy” that she and other coordinators were
allowed to “come pick up whatever hours [they] could, let that be two hours, let that be four, let
that be six, let that be eight. We were so short that – picking up shifts, they would let it be
convenient for you because they needed so much staff to come in for the volume.” (Id.)
Largely on that basis, the plaintiff purports to dispute that employees, whether full-time or
part-time, were always required to work twelve-hour shifts, pointing to certain examples in the
weekly schedules filed as an exhibit to her Response in opposition to ACS’s motion. (Doc. No.
41-1.) Thus, for example, she asserts that the schedule for May 7 to June 17, 2023 shows “full-
time Transfer Coordinator Amy Maddox working 3–6 shifts per week, including 5 shifts of less
than 12 hours” over the course of that six-week period, and “full-time Transfer Coordinator Wendy
Novak working 1 pm-7pm on May 28, 202[3].” (Doc. No. 42, Resp. to ACS SUMF ¶ 5.) However,
the referenced schedule shows in each case that these employees also worked at least three full
twelve-hour shifts during any week in which they also worked an overtime “short shift.” (See Doc.
No. 41-1 at 20; see also Doc. No. 31-8, Swift Dep. 46 (explaining that, although Novak did not
request to work on May 28, 2023, “there must have been a departmental need . . . for her to come
in that day” and noting that Novak had “already worked her 36-hour shifts [sic]” that week).)
Similarly, the plaintiff states that the schedule for August 21 to September 24, 2022 shows “part-
time Transfer Coordinator Diana Pettit working 2-4 shifts per week, including 3 shifts of less than
12 hours.” (Doc. No. 42, Resp. to ACS SUMF 6.) Again, the referenced schedule shows that Pettit,
as a part-time employee, worked at least two full twelve-hour shifts in any week in which she also
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worked a short shift.
Further, as ACS explains, Transfer Coordinators regularly worked less than twelve hours
per shift for a variety of reasons, including, but not limited to, picking up additional overtime
shifts; assisting during a particularly busy shift; having a pre-scheduled doctor’s appointment or
other commitment; splitting a twelve-hour shift with another employee; or receiving approval for
a medical accommodation that requires the employee to work less than a regular shift. (Galbreath
Rule 30(b)(6) Dep. 64–65; Swift Dep. 27–28.) However, these instances are not considered part
of the regular schedule. (Galbreath Rule 30(b)(6) Dep. 64; Swift Dep. 27.)
PRN employees are also expected to work twelve-hour shifts. (Galbreath Indiv. Dep. 24;
Doc. No. 31-5, McClure Indiv. Dep. 21; Swift Dep. 23–24, 27.) As the plaintiff points out, during
the period from May 7 to June 17, 2023, several PRN employees worked short shifts, even during
weeks that they did not work any full shifts. (Doc. No. 41-1 at 20.) These PRN employees were
scheduled very sporadically, however. For instance, Misty Mitchell worked 7:30 a.m. to 3:00 p.m.
on May 9 and May 24 but did not work any other shifts during that six-week period; Chartisha
Miller worked four full shifts, called in sick one shift, and worked five short shifts (7:00 a.m. to
12:00, 6:00 p.m. to 11:00 p.m., or 10:00 a.m. to 7:00 p.m.). (Id.) Abby Haywood worked one full
shift and no others during the entire six weeks. (Id.) Latonya Bailey worked one full shift and one
short shift during the same week, and no other shifts. (Id.) Demesha Anderson worked eighteen
full shifts and two short shifts during the same period. (Id.) Aside from Galbreath’s testimony that
PRN employees were expected to work twelve-hour shifts, the parties have not presented any
evidence as to these employees’ availability to work or the terms of their specific PRN
arrangements with ACS.
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On July 14, 2022, Hay informed her ACS supervisors and Human Resources that she was
pregnant. On January 28, 2023, Hay gave birth to her daughter. She notified ACS shortly
thereafter. Hay was approved for FMLA leave from January 28, 2023 through April 12, 2023. She
was also approved for leave under the Tennessee Maternity Leave Act (“TMLA”) from January
28, 2023 through May 16, 2023.3 At the time she went on leave, Hay was a full-time employee
working remotely. For most of 2022, through the middle of October, Hay worked at least three
full shifts per week, unless she took leave or requested days off (see Doc. No. 41-1 at 1–12), with
three exceptions (id. at 3, 6, 9). In the months just prior to her taking leave, beginning in late
October 2022 and continuing through January 28, 2023, Hay began working a somewhat more
irregular schedule, insofar as there were five weeks during that roughly three-month period in
which she worked two full shifts and two (or more) short shifts per week (rather than three twelve-
hour shifts), up until she went on maternity leave. (Id. at 13–15.)
In late April 2023, Hay called Tina Swift to discuss Hay’s anticipated return to work the
following month.4 During this call, Hay told Swift that she wanted to return to ACS “casually”
and asked about working shorter hours than the normally required twelve-hour shifts. (Hay Dep.
132.) Swift allegedly told her that they were short-staffed and that there were “a couple of people
who were sick that had part-time and/or PRN positions that were doing short shifts, and it was
working really well.” (Id.) According to Hay, Swift suggested that, if Hay was willing to change
to a different “market,” she could be “really flexible . . . and give [her] whatever hours [she]
3 The TMLA permits eligible employees to take up to four months of unpaid, job-protected
leave for pregnancy and related conditions, Tenn. Code Ann. § 4-21-408(a), more than the twelve
weeks required by the FMLA.
4 While Hay was on leave, her supervisor, Challa, left ACS to pursue other professional
opportunities. By the time Hay sought to return to work, Swift had taken over the scheduling
aspects of Challa’s role.
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needed.” (Id.) Hay asked Swift how many hours she would need to work to keep her benefits.
Swift responded that she would need to get back to Hay after discussing the matter with Galbreath.
(Id. at 133.) According to Swift, she told Hay that they could “use all the help [they] can get on
day shift,” but she meant that she was “looking at the schedule” to get Hay back as a full-time
employee. (Swift Dep. 62–63.) She acknowledged telling Hay that other Transfer Coordinators
were working six- to eight-hour shifts on an “as-needed” basis. (Id. at 63.)
On April 27, 2023, Hay texted Swift to ask whether working three six-hour shifts per week
would qualify as part-time, or whether she would need to work more than that. (Doc. No. 31-8 at
34.) Swift responded by directing Hay to call Galbreath to discuss her return-to-work plans. (Id. at
35.) Shortly after that (also in approximately late April 2023), Galbreath called Hay to ask if she
was willing to work twelve-hour shifts; Hay stated that she could not work twelve-hour shifts but
wanted to come back part-time or “casual PRN.” (Hay Dep. 138–39.) Galbreath told Hay that she
would get back to her.
On May 1, 2023, Galbreath emailed several supervisors and HR personnel, stating:
Katrina Hay called me this week to discuss her return to work plan. She is
requesting 18 hours with morning only shifts. This is not a position or a need that
the Medical Access Center has. I offered her afternoon/evening and weekend
alternatives, which she was open to. At this point, the Access Center cannot
accommodate Katrina’s requests. Not sure what needs to happen next.
(Doc. No. 31-4 at 30.) Jennifer McClure asked for clarification as to whether Hay was open or was
not open to afternoon, evening and weekend shifts and also for confirmation that Hay wanted
nothing longer than six-hour shifts. (Id.) Galbreath’s answer, “Correct,” means that she had
intended to say that Hay was not open to afternoon/evening or weekend shifts (Id. at 29.) McClure
responded:
Thank you. Then we cannot accommodate these requests as we do not have posted
shifts that meet these requirements. We will need to release her as she will not be
returning from FMLA to a position due to her restricted requests.
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(Id.)
Matt Ingram, Human Resources Generalist, interjected at this point:
Hold on, there are some questions that we need answers to first. This is the fi[r]st
that I am hearing of her requesting for a reduced schedule to return to work. Why
is she requesting a reduced schedule for when she returns after 5/16?
(Id.) McClure answered that Hay had a newborn and was “trying to navigate hers and her
husband’s schedules.” (Id.) She added that she understood from Galbreath that it was “a daycare
issue.” (Id.) Galbreath echoed: “Matt ~ She is requesting reduced hours due to her new baby. I will
let HR work directly with Katrina to answer any questions. I do not want to mis speak.” (Id. at 25.)
Ingram asked for how long Hay was requesting a reduced schedule and whether moving
her to part-time was a possibility. He also asked whether there was “any type of flex schedule she
would be able to work.” (Id. at 23.) McClure answered, “The time of day (morning day shift only)
and reduced hours (6 max) are both the issue. Our busy times are midday and evening. Not in the
morning. We are currently overstaffed at that time and are not scheduling short shifts.” (Id.)
The same day, on May 1, 2023, Hay had a telephone call with Ingram, during which she
told him she wanted to come back casually PRN, that she “didn’t really know what [her] options
are, what’s going to work best for them and . . . for [her],” but that she wanted to “start slow” and
“work [her] way up.” (Hay Dep. 146.) According to Hay, Ingram told her he did not know why it
would “ever be a problem” to “go casual PRN.” (Id. at 147.) Hay testified that she had been told
even before she went on leave that working PRN would not be a problem, and she asked him to
“just let them know [she was] flexible” and to let her know “what works best for them.” (Id.)
Also on May 1, 2023, Hay sent a text message to Swift asking whether she had heard back
from Galbreath. Swift forwarded the message to Galbreath. On May 2, 2023, Galbreath and Hay
had the following text exchange:
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Galbreath: Trina [Swift] sent me your text asking about your schedule. We have
our call with HR tomorrow and your return is one of the items to discuss. As
mentioned, we currently do not have a part time position or early morning need.
We’ll discuss options with HR and then follow up. Take care.
Hay: I spoke with HR yesterday. I’m willing to be flexible. I discussed with them
all the different options, I don’t need early mornings—that’s just what would work
best. There are days I can come in later on. I discussed this with them. Look forward
to hearing from you.
Galbreath: Perfect. Please send [Swift] your schedule and we’ll work on it. Are
you still wanting only part time?
Hay: I want PRN to start back. My goal is to work back to full time. I will give
[Swift] my availability.
(Doc. No. 31-2 at 118–19.)
On May 3, 2023, Hay emailed Swift as follows:
I am looking to come back PRN and ease back into full time.
To start for May and June I’d like to do 2, 6 hour shifts, by July my goal is to
increase to 2, 8 hour shifts and then as things progress keep increasing my hours
from there. I’d prefer not to work 2 days in a row.
I am available for 6 hour morning shifts pretty much any day of the week including
weekends – 7am–lpm.
Monday, Tuesday, Wednesday and Thursday’s I am available until 4pm – so I could
do 10am–4pm. When I start to increase my hours we can probably figure out
staying later.
I am flexible and willing to work with you to figure out the schedule.
(Doc. No. 31-4 at 33–34.) Swift forwarded Hay’s email to Galbreath, who forwarded it to the
Human Resources team.
According to Galbreath and other ACS representatives, the company did not have six-hour
shifts available: “[W]e work 12-hour shifts. We had no open positions, and . . . even if we did,
what she was offering didn’t even meet the requirements. She offered six-hour shifts. We work 12
hours.” (Galbreath Dep. 41; see id. at 51, 53; McClure Indiv. Dep. 31.)
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On May 4, 2023, Stephanie Hall called Hay to inform her that ACS could not grant her
scheduling requests but that her full-time RN Transfer Coordinator position (working three twelve-
hour shifts per week) was available to her to return to at the conclusion of her leave. Hay told Hall
that she had repeatedly communicated that she “cannot come back full time” and that she felt
“discriminated against as a new mother.” (Hay Dep. 161.) She conveyed that she was “hurt,” that
there was “no way [she] could come back full time,” and that the company was “effectively firing
[her].” (Id. at 161–62.) During this call, she also stated, “I wouldn’t even know how to begin to
start to return by equipment,” before hanging up on Hall. (Id. at 162.)
Ginger Hearn, testifying as ACS’s corporate representative on the topic of Hay’s
separation, was on the line and listening to Hay’s conversation with Hall on May 4, 2023. (Doc.
No. 31-3, Hearn 30(b)(6) Dep. 82.) She stated that ACS’s take-away from the conversation was
that Hay had resigned. (Id. at 80–81.) As Hearn explained:
We didn’t ask her to return her equipment. We offered her her full-time position
that was held for her after her leave. . . .
When she indicated that she was not going to return back to the full-time role that
we offered to her and then said, “Where do I turn in my equipment?” we took that
as her resignation . . . . I would say it’s a combination [of the two statements].
(Id. at 81.)
On May 4, 2023, Hall memorialized the company’s understanding that Hay had resigned
in a written memorandum that stated:
I spoke to Katrina [Hay] on May 4, 2023 to let her know that we are unable to
accommodate the requests for the hours listed below. I also informed her that we
have her full time position available for her to return to. She stated that she was not
returning full time. She asked how to return her equipment.
We will process this as a termination with a reason of “not returning for [sic] LOA.”
(Doc. No. 31-6 at 31.)
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Hay called Hall back the morning of May 5, 2023 to apologize for hanging up on her and
to say that she was willing to work twelve-hour shifts but could not work three shifts per week.
(Hay Dep. 162.) Hall did not call her back. (Id. at 163.)5
Instead, at 4:42 p.m. on May 5, 2023, Hall emailed Hay explaining that, since Hay had
resigned on May 4, 2023 and therefore was not employed through the end of the calendar year,
Hay owed back a pro-rated portion of her retention bonus. (Doc. No. 31-2 at 121.) Also on May
5, 2023, at 3:15 p.m., Matt Ingram emailed Hay a termination packet (id. at 122), which Hay
concedes she “likely” opened the day it was sent (Hay Dep. 174–75).
ACS has not been able to identify a specific person who filled Hay’s position following
her separation from employment, even though ACS hired other full-time Transfer Coordinators
after Hay left. (Galbreath Rule 30(b)(6) Dep. 8; Doc. No. 31-9, Hearn Indiv. Dep. 33.)
B. 	Discussion
ACS seeks summary judgment on all claims asserted against it. It argues that (1) the THRA
and TPWFA claims are barred by the statute of limitations; (2) Hay’s FMLA interference claim
fails because she received the full twelve weeks of FMLA parental leave to which she was entitled
and was offered reinstatement to the position she held when she took leave; (3) her FMLA
retaliation claim fails because she was offered reinstatement to her original position; (4) she cannot
establish a prima facie case of pregnancy discrimination, for purposes of her PDA claim, or rebut
ACS’s proffered reasons for its actions; and (5) she cannot establish a prima facie case of
retaliation in violation of Title VII or rebut ACS’s proffered reasons for its actions.
5 Hall does not recall receiving a voice message from Hay on May 5, 2023. (Doc. No. 31-
6, Hall Dep. 59.)
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1. 	State Law Claims and the Statute of Limitations
The plaintiff filed suit on May 15, 2024, and she concedes that her claims under the THRA
and the TPWFA are subject to a one-year statute of limitations. See Tenn. Code Ann. § 4-21-
311(d); Tenn. Code Ann. § 50-10-104(c). The issue before the court is whether, as a matter of law,
the plaintiff’s THRA and TPWFA claims accrued more than one year before the plaintiff filed her
Complaint.
The plaintiff testified that, when Stephanie Hall told her during the telephone call on May
4, 2023 that the company would only take her back full-time, which required working three twelve-
hour shifts per week, the plaintiff responded as follows:
I let her know how inhumane it was and how I was feeling discriminated against
and that it was impossible and they knew that for me to come back full time and
. . . [I] was always told it was going to be okay [to come back casual part time] and
that they couldn’t possibly be treating a new mother like this.
And I do remember asking about the equipment. I remember me being so
overwhelmed, like, how would I even return all this equipment? . . . Because, in my
mind, they were firing me in that moment. Three 12-hour shifts, you know I can’t
do that.
(Hay Dep. 164–65.) Hay was “so upset” that she hung up on Hall without letting her finish. (Id. at
165.) Hay reiterated that her understanding at that moment was that “they were basically firing me
in that moment, because they knew I couldn’t come back for three 12-hour shifts, that it was going
to be physically and mentally impossible for me.” (Id.)
After speaking with her husband, Hay called Hall back the next morning to tell her that she
was willing to work twelve-hour shifts, just not three per week. She asked that someone call her
back so they could “work something out.” (Id. at 170.) Instead of a call back, Hay received an
email from Hall at 4:42 p.m. the same day, on May 5, 2023, that was about repayment of part of
her retention bonus. (See id. at 185 (“That’s the only response I ever got. I never got any response
from my voicemail whatsoever.”).) As set forth above, the email stated: “Since you resigned on
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May 4, 2023, the amount you owe back is $833.28. You indicated on the phone that you would
send a check.” (Id. at 171.)
The plaintiff also received an email from Matt Ingram on the afternoon of May 5, 2023—
so presumably after her morning telephone call to Hall—that stated: “Matt Ingram requests your
signature on Katrina Hay termination.” (Doc. No. 31-2 at 122.) The email contained her
“separation packet.” (Hay Dep. 172, 174.) The plaintiff “likely” opened the separation packet from
Ingram the day she received it. (Id. at 175.)
These documents establish unequivocally that ACS considered Hay to have voluntarily
resigned from ACS on May 4, 2023 or, alternatively, that ACS had decided no later than May 5,
2023 that it was terminating her as a result of her refusal of the offer to come back to work full-
time. More importantly, the record establishes that ACS communicated to Hay no later than May
5, 2023 its conclusion that Hay’s employment had terminated on May 4, 2023. The plaintiff
attempts to avoid the implication of the notices she received on May 5, 2023 by arguing that she
was waiting for Hall to respond to her telephone message about her willingness to work twelve-
hour shifts and that she continued to “wait[] to hear from ACS and return to work on May 17,
2023,” the day after her leave under the TMLA would expire. (Doc. No. 43 at 8.) Hay claims that
she received a “Community Health Systems Employee Exit Survey” on May 15, 2023. (Id. at 9
(citing Doc. No. 41-12 at 1).) In addition, Ingram re-sent the separation packet on May 19, 2023
and again on May 26, 2023; the subject line of the email each time stated: “Reminder: Waiting for
you to sign Katrina Hay Termination.” (See Doc. No. 41-12 at 2; see also id. (“Matt Ingram has
requested that this reminder be sent; This reminder will be re-sent every week until completed.”).)
ACS argues that, because Hay unequivocally received notice no later than May 5, 2023
that ACS considered her employment to be terminated (irrespective of whether Hay resigned or
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was terminated by ACS), but she did not file suit until May 15, 2024, she “cannot skirt the clear
one-year statute of limitations that bar[s] her THRA and TPWFA claims.” (Doc. No. 32 at 7.6)
The plaintiff responds that there is a factual dispute as to whether she resigned or was terminated
and that this dispute is material. She contends that she called Hall back the morning of May 5 to
notify her that she was willing to work twelve-hour shifts, and then she “waited to hear back from
Defendants.” (Doc. No. 43 at 10.) She points out that she did not receive the “Exit Survey” until
May 15, 2023 and claims that she was then “denied reinstatement on May 17,” which she
characterizes as “both her termination and an independent adverse action.” (Id.) Hay insists that
her claims are timely under both the TPWFA, which provides that a cause of action must be filed
within one year of “the date of termination of employment or the date of the adverse employment
action,” Tenn. Code Ann. § 50-10-104(c), and under the THRA, which states that a civil action
“must be filed . . . within one (1) year after the alleged discriminatory practice ceases.” Tenn. Code
Ann. § 4-21-311(d). She asserts in the alternative that she is entitled to equitable tolling, because
ACS “misrepresent[ed] the circumstances surrounding the challenged employment action.” (Doc.
No. 43 at 11.) ACS’s Reply asserts that any dispute as to whether Hay retired or was terminated is
not material, because Hay unequivocally knew on May 5, 2023 that ACS considered her
employment to have terminated on May 4, 2023. (Doc. No. 48 at 2.)
“State law (not federal law) determines the accrual date of state claims in federal court.”
Coleman v. Hamilton Cnty. Bd. of Cnty. Comm’rs, 130 F.4th 593, 604 (6th Cir. 2025). And, under
Tennessee law, it is clear that the plaintiff’s state law claims are time-barred. More specifically,
the Tennessee Supreme Court has held that “a discriminatory termination ceases and is complete,
6 ACS did not paginate the first page of its Memorandum or Reply, as a result of which the
page numbers applied by CM/ECF differ from the page numbers supplied by the defendant. The
court employs the CM/ECF pagination.
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when the plaintiff is given unequivocal notice of the employer’s termination decision, even if
employment does not cease until a designated date in the future.” Weber v. Moses, 938 S.W.2d
387, 391–92 (Tenn. 1996) (citing Chardon v. Fernandez, 454 U.S. 6 (1981); Del. State Coll. v.
Ricks, 449 U.S. 250 (1980)). In Weber, the plaintiff received oral notification that his employment
contract would end in three weeks. The Tennessee Supreme Court affirmed the dismissal of the
plaintiff’s THRA claim as time-barred on the basis that the limitations period began running on
the date the plaintiff received notice that his employment would end, rather than three weeks later,
on the date his employment actually ended. Id. at 393.
In reaching that conclusion, the court expressly rejected the plaintiff’s argument that his
oral notification was not “definite and final,” in part because, aside from the admittedly
unequivocal notice (that the company had “decided to terminate his sales manager contract
effective August 31, 1992,” id. at 388), the plaintiff’s email requesting reconsideration of the
“decision to terminate [his] Sales Manager contract” “revealed [the plaintiff’s] awareness that [the
employer] previously had decided to terminate his sales manager contract.” Id. at 392. In addition,
the plaintiff stated in an affidavit that he “continued to hope” that he would not be terminated until
he received “written verification of [his] termination,” which further established that he was aware
of the decision and only hoped for reconsideration. Id. (emphasis in original). The court stated:
“An employee’s hope for rehire, transfer, promotion, or a continuing employment relationship
cannot toll the statue of limitations absent some employer conduct likely to mislead an employee
into sleeping on his rights.” Id.
Here, the plaintiff claims that she believed that Hall was “firing [her], essentially,” during
their May 4, 2023 telephone call, during which Hall “just kept saying, ‘If you’re not going to come
back for three 12s, then you have to return your equipment . . . . You have to pay us all this money
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back.” (Hay Dep. 195.) Hay hung up on Hall. She called her back the next morning to say that she
would be willing to work twelve-hour shifts, but not three per week—in other words, not full-time.
(Id. at 161–62.) The only response the plaintiff received in response to her message was (1) Hall’s
May 5 email, stating that, in light of Hay’s resignation on May 4, 2023, she owed back to the
company part of her retention bonus, which the plaintiff acknowledged having discussed with Hall
on the previous day’s telephone call and “probably” telling Hall she would send the payment by
check (id. at 171); and (2) Matt Ingram’s May 5, 2023 email, stating, “Matt Ingram requests your
signature on Katrina Hay termination” (id. at 172). In other words, the plaintiff received
unequivocal notice from ACS on May 5, 2023 that it considered her employment to have
terminated on May 4 , 2023. The plaintiff’s unilateral hope that the company would respond
favorably to the message she had left for Hall on the morning of May 5, 2023, offering to come
back to work part-time, was simply not sufficient to extend the limitations period, “absent some
employer conduct likely to mislead an employee into sleeping on [her] rights.” Weber, 938 S.W.2d
at 392 (emphasis added). Here, there was no conduct on the part of ACS that could have misled
the plaintiff. The fact that ACS kept sending additional documents that reconfirmed the
termination decision did not suggest either that the alleged wrongful conduct was ongoing or that
ACS had reconsidered that decision.
Likewise, the fact that the plaintiff’s unpaid leave under the TMLA was not set to expire
until May 17, 2023 did not extend the limitations period, given that the plaintiff knew as of May
5, 2023 that ACS considered her employment to have terminated. Accord Holcomb v. Sverdrup
Tech., Inc., No. M2000-00536-COA-R3-CV, 2001 WL 1386093, at *3 (Tenn. Ct. App. Nov. 8,
2001) (“[N]otice of the termination provides knowledge of the injury; the fact that employment
may continue beyond the date of the notice does not mean that the employee gains reasonable
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knowledge of the adverse action only when employment actually ceases.”).
The case on which the plaintiff relies does not compel a different conclusion. In E.E.O.C.
v. United Parcel Serv., Inc., 249 F.3d 557 (6th Cir. 2001), the court recognized that the “limitations
period does not begin to run on a claim for employment discrimination until an employer makes
and communicates a final decision to the employee” and that, “[o]nce the employee is aware or
reasonably should be aware of the employer’s decision, the limitations period commences.” Id. at
561–62 (citing Ricks, 449 U.S. at 258). That case involved an “on-going interactive process” of
finding an accommodation, and the plaintiff’s claim did not accrue until that process was complete.
Id. at 562. In this case, to the contrary, there were no ongoing discussions after the May 4 telephone
call, and the plaintiff’s claim that she was still waiting for a response to her voice message, despite
repeated communications from ACS that it considered her employment to have ended, was not
reasonable.
The plaintiff’s claim that there is a distinction between “the date of termination of
employment” and “the date of the adverse employment action,” for purposes of Tenn. Code Ann.
§ 50-10-104(b), and her evocation of the “date the alleged discriminatory practice ceases,” under
Tenn. Code Ann. § 4-21-311(d), are also unavailing. The plaintiff was notified on May 5, 2023
that ACS believed her employment had terminated on May 4, 2023. It never reversed course from
that position, and its repeated communications about that determination did not extend the
limitations period and did not constitute continuing discrimination. The date on which Hay’s
TMLA leave was otherwise set to expire did not constitute a separate adverse employment action,
because the plaintiff’s employment had already terminated before May 16, 2023.
In sum, the court concludes that the limitations period for the plaintiff’s state law claims
began to run no later than May 5, 2023, when Hay knew of the defendant’s position that her
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employment had terminated as of May 4, 2023. Regardless of whether Hay resigned or was
terminated, her THRA and TPWFA claims, filed on May 15, 2024, are untimely unless saved by
some form of tolling.
The plaintiff invokes equitable tolling, but the facts do not support the plaintiff’s assertion
that ACS misrepresented the circumstances surrounding the termination of the plaintiff’s
employment. Moreover, the Tennessee Supreme Court, “unlike other state courts and the federal
courts,” has declined to recognize “the doctrine of equitable tolling in civil cases.” Redwing v.
Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436, 460 (Tenn. 2012). The Tennessee
Supreme Court did hold that equitable estoppel and fraudulent concealment may toll the running
of the statute of limitations, but equitable estoppel requires proof that “the defendant has misled
the plaintiff into failing to file suit within the statutory limitations period” by engaging in
affirmative misconduct to “induce the plaintiff to delay filing suit.” Id. (citations omitted). And
fraudulent concealment requires proof that the defendant “has taken steps to prevent the plaintiff
from discovering he [or she] was injured.” Id. (citation omitted). The plaintiff has offered no such
proof in this case.7
The plaintiff’s state-law claims, therefore, are time-barred and subject to dismissal on that
ground.
7 Hay cites an email exchange between counsel in support of her estoppel argument, but
she did not attach the cited emails to her Response. The defendant attached them to its Reply. In
this email exchange, which took place on March 4–5, 2024, before the plaintiff filed suit, counsel
for the defendants stated: “[Hay] certainly could have gone PRN at the time, but she chose not to
and sent in her resignation. I think your client is confused.” (Doc. No. 48-2 at 4.) Plaintiff’s counsel
responded that Hay had emailed Swift on May 3, 2023, telling her that she was “looking forward
to com[ing] back PRN and eas[ing] back into full time.” (Id. at 3.) Plaintiff’s counsel added: “That
is the same day CHS/ACS claims Ms. Hay quit.” (Id.) In other words, counsel for both parties
agreed that ACS had taken the position that Hay resigned (though on May 4 rather than May 3).
That discrepancy aside, nothing about this exchange suggests that ACS somehow induced the
plaintiff to delay filing suit until after the limitations period expired.
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2. 	FMLA Claims
The Complaint asserts that ACS violated the FMLA by (1) “interfering with Ms. Hay’s
exercise of her rights under the FMLA” and “failing to reinstate Ms. Hay [to] her position and
benefits or an equivalent position and benefits at the end of her medical leave”; (2) “discriminating
and retaliating against Ms. Hay because she opposed this denial of her full medical leave rights;
and (3) “discriminating and retaliating against Ms. Hay for exercising her rights under the FMLA
by taking full medical leave.” (Doc. No. 1 ¶¶ 77–79.) In other words, the plaintiff articulates both
interference and retaliation claims.
a) 	Legal Framework
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., generally entitles
eligible employees to take twelve “workweeks” of leave during any twelve-month period for
certain specified events, including the birth of a child. 29 U.S.C. § 2612(a)(1)(A). The employee,
“on return from such leave,” is also entitled to be “restored by the employer to the position of
employment held by the employee when the leave commenced” or to “an equivalent position with
equivalent employment benefits, pay, and other terms and conditions of employment.” Id. §
2614(a)(1)(A) & (B).
Covered employers are prohibited from “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise,” the rights accorded by the FMLA. Id. § 2615(a)(1). In
addition, it is “unlawful for any employer to discharge or in any other manner discriminate against
any individual for opposing any practice made unlawful by this subchapter.” Id. § 2615(a)(2), (b).
Section 2617 provides for the enforcement of these provisions.
There are “[t]wo distinct theories of recovery” under the FMLA: an entitlement theory,
also referred to as interference theory, and a retaliation theory. Edgar v. JAC Prods. Inc., 443 F.3d
501, 507 (6th Cir. 2006) (citing Arban v. West Publ’g Corp., 345 F.3d 390, 400–01 (6th Cir.
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2003)). Under the interference/entitlement theory, “[t]he issue is simply whether the employer
provided its employee the entitlements set forth in the FMLA—for example, a twelve-week leave
or reinstatement after taking a medical leave.” Id. (citing Arban, 345 F.3d at 401). The right to
reinstatement is the “linchpin” of this theory because “the FMLA does not provide leave for leave’s
sake, but instead provides leave with an expectation [that] an employee will return to work after
the leave ends.” Id. (citations omitted).
Thus, to prevail on an entitlement claim, an employee must prove that:
(1) she was an eligible employee, (2) the defendant was an employer as defined
under the FMLA, (3) she was entitled to leave under the FMLA, (4) she gave the
employer notice of her intention to take leave, and (5) the employer denied the
employee FMLA benefits to which she was entitled.
Id. (citations omitted). The employer’s intent is not a relevant part of the inquiry. Id.; see also
Jaszczyszyn v. Advantage Health Physician Network, 504 F. App’x 440, 447 (6th Cir. 2012)
(holding that plaintiff’s FMLA interference claim failed because she had been given all the leave
to which she was entitled). The FMLA does not include a reasonable accommodation requirement.
See Tillotson v. Manitowoc Co., 727 F. App’x 164, 170 (6th Cir. 2018) (citing Smith v. City of
Niles, 505 F. App’x 482, 485 (6th Cir. 2012)); accord, e.g., Macfarlan v. Ivy Hill SNF, LLC, 675
F.3d 266, 271–72 (3d Cir. 2012) (“The FMLA does not require ‘an employer to provide a
reasonable accommodation to an employee to facilitate his return to the same or equivalent
position at the conclusion of his medical leave.’” (citing Rinehimer v. Cemcolift, Inc., 292 F.3d
375 (3d Cir. 2002)). Further, the FMLA is not to be “construed to entitle any restored employee to
. . . any right, benefit, or position of employment other than any right, benefit, or position to which
the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. §
2614(a)(3)(B).
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FMLA retaliation claims (as distinct from interference claims) are analyzed under the
familiar McDonnell Douglas burden-shifting framework when the plaintiff relies on indirect
evidence. Donald v. Sybra, Inc., 667 F.3d 757, 762 (6th Cir. 2012) (citing Edgar, 443 F.3d at 508).
Thus, the employee must establish a prima facie case to support her claim. If she does so, the
burden shifts to the defendant to offer a legitimate non-discriminatory reason for its action. The
burden then returns to the plaintiff to prove that the proffered reason is pretext for retaliation. To
establish a prima facie case of retaliation, the plaintiff must show that
(1) she was engaged in an activity protected by the FMLA; (2) the employer knew
that she was exercising her rights under the FMLA; (3) after learning of the
employee’s exercise of FMLA rights, the employer took an employment action
adverse to her; and (4) there was a causal connection between the protected FMLA
activity and the adverse employment action.
Jaszczyszyn, 504 F. App’x at 447 (citing Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549, 556
(6th Cir. 2006)). Under this theory, the employer’s motive may be relevant, “because ‘retaliation
claims impose liability on employers that act against employees specifically because those
employees invoked their FMLA rights.’” Id. (quoting Edgar, 443 F.3d at 508).
As the Sixth Circuit has explained, interference and retaliation claims differ somewhat in
focus:
What makes the employment decision unlawful under the [retaliation] theory is the
motive of the employer—namely, that the action was taken because the employee
exercised, or complained about the denial of, FMLA-protected rights. Because the
McDonnell Douglas burden-shifting framework applies to retaliation claims,
employers will point to evidence of the employee’s medical condition as a
legitimate, nondiscriminatory reason for the employment decision. The time at
which the evidence arises thus becomes a crucial factor in discerning the
employer’s motive.
. . . .
Employers, in other words, are still permitted to cite the . . . evidence available prior
to the employment decision as a legitimate, nondiscriminatory basis for taking an
adverse action against an employee otherwise eligible for the 12–week leave
period.
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Edgar, 443 F.3d at 512–13 (internal citations omitted).
b) 	Hay’s Interference Claim
ACS argues that the plaintiff’s FMLA interference claim fails because it is undisputed that
the plaintiff received all the FMLA leave to which she was entitled and that she was offered
reinstatement to the same position, with identical pay and benefits, that she held prior to taking
leave. (Doc. No. 32 at 8.) Similarly, ACS argues that, because it held her job for her and offered
to reinstate her to the position she held before taking leave, Hay cannot prove an adverse
employment action for purposes of her FMLA retaliation claims. ACS also argues that, insofar as
Hay is claiming that ACS violated the FMLA by refusing her requests for a modified schedule,
the claim fails because the FMLA does not contain a reasonable accommodation requirement.
In response, the plaintiff apparently does not contest that she received twelve weeks of
FMLA leave and that she was offered reinstatement to the job she held prior to taking leave. She
argues instead that the FMLA provides broader protection than the defendant suggests, as it only
requires a showing that the employer “discouraged the exercise of FMLA rights.” (Doc. No. 43 at
16 (quoting Edgar v. JAC Prods., Inc., 443 F.3d 501, 507 (6th Cir. 2006)).) She argues that ACS
violated the FMLA by discouraging her from using FMLA leave, thus forcing her to “fight for her
full leave for nearly four months.” (Id.) ACS denies discouraging the plaintiff from taking FLMA
leave but contends that, even if there is a factual dispute on that point,8 it is not material, because
the record establishes that Hay’s FMLA requests were always approved, both for intermittent leave
in 2022, during her pregnancy, and for maternity leave in 2023. (See Doc. No. 48 at 5 n.5 (citing
8 ACS points to evidence in the record that ACS employees greeted the plaintiff’s
announcement of her pregnancy with enthusiasm, including Stephanie Hall’s response email in
which Hall gushed, “This is exciting news!!! Congratulations!!!” and advised Hay to reach out to
the FMLA team. (See Doc. No. 31-2 at 106.)
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Hay Dep. 98–101, 119–24; Doc. No. 48-3 at 2, 5–6, 12–13, 17–18).)
The court finds the plaintiff’s “discouragement” theory of recovery to be without merit
under the circumstances presented here. While the Sixth Circuit has recognized that “unlawful
interference could occur when an employer merely attempts to ‘discourag[e] an employee from
using [FMLA] leave,’” it is also clear that “the employee must, in all cases, show that their
employer’s interference prejudiced them, or ‘caused them harm,’ within the meaning of the
statute.” Vonderhaar v. Waymire, 797 F. App’x 981, 990 (6th Cir. 2020) (first quoting 29 C.F.R.
§ 825.220(b); then citing Wallace v. FedEx Corp., 764 F.3d 571, 585 (6th Cir. 2014)); see also
Edgar, 443 F.3d at 507–08 (“[T]he FMLA is not a strict-liability statute. Employees seeking relief
under the entitlement theory must therefore establish that the employer’s violation caused them
harm.” (internal citations omitted; citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89
(2002)). Thus, irrespective of whether ACS discouraged the plaintiff from taking leave, the fact
remains that Hay’s requests for leave were ultimately granted, so she cannot show that she suffered
harm as a result of the alleged discouragement. Without harm, the plaintiff cannot prove an FLMA
interference claim based on “discouragement.”
Hay also maintains that she was not actually offered reinstatement to her pre-leave position,
because she was not offered to return to the “agreed-upon flexible schedule” she had enjoyed prior
to taking leave. (Doc. No. 43 at 17.) ACS argues that this argument is “pure speculation” in support
of which Hay offers no evidence (Doc. No. 48 at 6–7). The court agrees. It is undisputed that Hay
was working full-time before taking leave and that a full-time position was considered to be three
twelve-hour shifts per week. (Galbreath Indiv. Dep. 22–23; Hay Dep. 52–53.) That schedule, for
her and other employees, varied somewhat according to necessity, with employees taking personal
leave for medical appointments, illness, vacation time, and so forth. (Galbreath Rule 30(b)(6) Dep.
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64–65; Swift Dep. 27–28.) In addition, Hay and other employees occasionally picked up overtime,
including “short shifts,” in addition to their three twelve-hour shifts. (Hay Dep. 55; Doc. No. 41-1
at 20; Swift Dep. 46.) The plaintiff offers nothing but speculation to support her claim that the full-
time position as offered would not have been equivalent to the position she held before taking
leave, with the flexibility enjoyed by all full-time Transfer Coordinators.
In sum, because the plaintiff cannot show that she was denied FMLA benefits to which she
was entitled, her FMLA interference claim fails.
c) 	Retaliation Claim
ACS, without actually raising the McDonnell Douglas burden shifting analysis, argues that
that the plaintiff cannot establish a retaliation claim, first, because she did not suffer an adverse
employment action. ACS contends that Hay “made the voluntary choice to decline to return to her
full-time position” and instead “sought to return to work with abbreviated hours on specific days
of the week.” (Doc. No. 32 at 9.) It points out that, after ACS informed Hay that it would not grant
her request for a shortened schedule, Hay was the party who brought up returning her equipment.
(Id.) Second, it argues that, even if the court presumes that ACS terminated Hay, Hay cannot
establish a causal connection between her FMLA leave and her termination, because “any
purported termination would be due to Hay’s refusal to accept ACS’s reinstatement offer and
return to full-time work following the expiration of her leave.” (Id. at 10.) It also contends that its
efforts to retain Hay negate any inference of causation that may be drawn from the temporal
proximity at issue.
Hay argues in response that her termination was an adverse employment action and that
the fact that “the adverse decision coincided with the end of Hay’s protected leave,” coupled with
evidence of ACS’s animus against her, is sufficient to permit a jury to infer a causal connection.
(Doc. No. 43 at 18.) For instance, she points to an email exchange among Stephanie Hall, Ginger
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Hearn, and Matt Ingram on May 2, 2023, in which Ingram asked Hearn for input on the situation,
because “Jennifer [McClure] and Patti [Hearn] are both saying that they are unable to
accommodate [Hay’s] request” for short shifts and PRN “for the next 3 to 6 months,” “due to being
overstaffed for AM shifts. However, they have allowed other employees to go PRN for various
reasons.” (Doc. No. 41-7 at 73–74.) Hearn asked for input from Hall, and Hall responded:
[Hay] has exhausted FMLA and because she needs intermittent leave, a PLOA
would not be beneficial. So the issue is that she has requested to go PT or PRN. I
think this is where we could potentially be at risk. They are not consistent with how
they allow employees to go from FT to PRN or PT. We have tried to get them to
set forth a standard set of questions to determine if someone can go PRN or PT, but
they are not consistent with how they apply this.
Jennifer and Patti do not want this employee. Therefore they are going to resist and
potentially go to you (or higher) to argue this. . . .
(Id. at 73.)
Hay, too, points out that other employees were permitted to transition from full-time to
PRN, and she asserts that ACS’s “oscillati[on]” between characterizing her termination as a
“resignation” and a “failure to return” “suppl[ies] further proof from which a jury may infer
retaliatory causation and pretext.” (Doc. No. 43 at 18 (citing Cooley v. E. Tenn. Human Res.
Agency, Inc., 720 F. App’x 734, 745 (6th Cir. 2002)).)
ACS’s Reply reiterates its position that the plaintiff’s refusal to return to full-time work
cannot be characterized as an adverse employment action on the part of ACS and that the refusal
of reinstatement breaks any causal chain. (See Doc. No. 48 at 8 (“An FMLA retaliation claim
requires that some sort of adverse action follow FMLA leave. Here, ACS did the opposite: it
offered Hay her original job after her FMLA leave expired.”).) It also maintains that the fact that
it offered reinstatement negates the inference of any retaliatory intent. (Id. at 9.)
As set forth above, to establish a prima facie retaliation case, the plaintiff must show that,
“after learning of the employee’s exercise of FMLA rights, the employer took an employment
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action adverse to her.” Killian, 454 F.3d at 556. Here, the defendant claims that it offered the
plaintiff restoration to her original position and that, when she refused it and discussed returning
her equipment, ACS reasonably understood her to have resigned. However, there is documentation
in the record suggesting that ACS terminated Hay based on her refusal to return to work full-time
following leave. There is also evidence that Hay wanted and intended all along to return to work,
that she had been assured, at least initially, that a part-time or PRN position would be available to
her, and that she was blindsided by ACS’s sudden reversal of position, telling her that she could
only come back to work full-time, working twelve-hour shifts. The court finds the evidence in the
record sufficient to support an inference that the plaintiff was terminated. Hay herself construed
ACS’s position as equivalent to “firing” her. (Hay Dep. 161–62, 165.) In other words, in this
context, there is a material factual dispute as to whether the plaintiff resigned or was terminated
and therefore subject to an adverse employment action. Moreover, even her resignation could,
under the circumstances, be deemed a constructive discharge.
ACS also argues that the plaintiff cannot establish a causal connection between her FMLA
leave and her termination, essentially because the length of time between Hay’s taking FMLA
leave and the adverse action does not, standing alone, give rise to an inference of causation, and,
in any event, “Hay’s refusal of the reinstatement offer . . . severs any purported causal chain,
regardless of temporal proximity.” (Doc. No. 48 at 8.)
While the Sixth Circuit has equivocated on this issue, it has indicated that, on rare
occasions, acutely close temporal proximity may, standing alone, be sufficient to establish
causation at the prima facie stage. See, e.g., Kenney v. Aspen Techs., Inc., 965 F.3d 443, 449 (6th
Cir. 2020) (citing Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir. 2008)). The Sixth
Circuit has also been less than clear about when the clock begins running for purposes of a
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retaliation claim. Compare, e.g., Bush v. Compass Grp. USA, Inc., 683 F. App’x 440, 452 (6th Cir.
2017) (“[T]he relevant timeframe for us to consider in determining whether there was a causal
connection between the plaintiff’s FMLA leave and the adverse employment action is the ‘time
after an employer learns of a protected activity,’ not the time after the plaintiff's FMLA leave
expires.” (quoting Mickey, 516 F.3d at 525), with Judge v. Landscape Forms, Inc., 592 F. App’x
403, 410 (6th Cir. 2014) (“[W]e have measured temporal proximity from the date FMLA leave
expired, not just when the employee first requested it, for the purposes of measuring temporal
proximity”).
The relevant time in this case is the time between the plaintiff’s termination and her
anticipated return to work, which was a matter of a couple of weeks. The court finds that the
temporal proximity between the termination of the plaintiff’s FMLA eligibility and the termination
of her employment, coupled with other circumstantial evidence in the record, is sufficient to give
rise to an inference of causality, for purposes of the plaintiff’s prima facie case. In particular, there
is evidence that, even before Hay was offered restoration to her full-time position, ACS’s
management “did not want” Hay, as set forth in the HR emails that Hay highlights. In addition,
although the FMLA does not grant her “an independent right to be considered for a transfer” to a
PRN or part-time position, “the FMLA does protect [Hay’s] right to be treated the same as other
similarly situated employees.” Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d 309, 317 (6th
Cir. 2001). Hay has offered evidence suggesting that other employees were permitted to transition
from full-time to part-time or PRN, but, when she indicated that she wanted to work PRN, she was
told that that was not an option.
Further, although ACS claims that working twelve-hour shifts was a requirement for
working either part-time or PRN, there is no evidence that it explained that policy to the plaintiff
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or that it was actually an essential job requirement. The plaintiff, moreover, repeatedly stressed
her flexibility, and she testified that, once she understood that the choice was between working
twelve-hour shifts and not working at all, she attempted to inform ACS that she could make twelve-
hour shifts work, just not three shifts per week. (Hay Dep. 162.)
Under these circumstances, particularly given ACS’s abrupt about-face (at least from the
plaintiff’s perspective) as to whether it would grant the plaintiff a flexible schedule for some period
of time upon her return to work, the court finds that a reasonable jury could infer a causal
connection between the plaintiff’s taking FMLA leave and her termination. Thus, for purposes of
summary judgment, the plaintiff has established a prima facie case of retaliation. The defendant
does not discuss the next steps of the McDonnell Douglas burden-shifting framework—
specifically whether Hay can rebut its proffered reasons9 for its actions. The court declines to
address an argument the defendant did not make and concludes instead that the defendant is not
entitled to summary judgment on the plaintiff’s FMLA retaliation claim.
3. 	Title VII and PDA Claims
In her Complaint, Hay asserts that ACS violated Title VII and the PDA when it
discriminated against her “due to her sex and pregnancy,” failed to accommodate a pregnancy-
related need,10 and retaliated against her for “oppos[ing] discrimination based on her sex and
pregnancy.” (Compl. ¶¶ 50–52.)
9 ACS does not characterize it as such in the context of the plaintiff’s FLMA retaliation
claim, but the court presumes that it would argue that the plaintiff’s refusal to return to work full-
time provided it a legitimate, non-retaliatory reason for considering her to have resigned. But ACS
does not address its failure to engage with the plaintiff more directly about her request for short
shifts or its failure to consider allowing her to transfer to a part-time or PRN position.
10 In fact, the Complaint raises a claim for failure to accommodate under the TPWFA (Doc.
No. 1 ¶¶ 59–72), not Title VII (see id. ¶¶ 47–56). ACS did not address a Title VII/PDA failure to
accommodate claim in its summary judgment Memorandum. Hay’s Response to the Motion for
Summary Judgment asserts that she has made a claim for failure to accommodate under Title VII
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a) 	Discrimination
Legal Framework
Title VII makes it unlawful for a covered employer to “discriminate against any individual
with respect to . . . [the] terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1). The PDA, enacted in 1978, requires employers
to treat “women affected by pregnancy, childbirth, or related medical conditions . . . the same for
all employment-related purposes . . . as other persons not so affected but similar in their ability or
inability to work.” 42 U.S.C. § 2000e(k). The PDA, that is, “makes clear that Title VII’s
prohibition against sex discrimination applies to discrimination based on pregnancy.” Young v.
United Parcel Serv., Inc., 575 U.S. 206, 210 (2015). In addition, “the [PDA] makes clear that its
protection extends to the whole range of matters concerning the childbearing process.” Kocak v.
Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 469 (6th Cir. 2005) (citation omitted)
(emphasis in original).
A plaintiff can prove disparate treatment for purposes of Title VII and PDA claims through
either “direct evidence that a workplace policy, practice, or decision relies expressly on a protected
characteristic” or indirect evidence, using the burden-shifting framework set forth in McDonnell
Douglas. Id. at 213 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Using
indirect evidence, the plaintiff must first establish a prima facie case of pregnancy discrimination
by showing that “(1) she was pregnant, (2) she was qualified for her job, (3) she was subjected to
an adverse employment decision, and (4) there is a nexus between her pregnancy and the adverse
employment decision.” Latowski v. Northwoods Nursing Ctr., 549 F. App’x 478, 483 (6th Cir.
as well as state law. (Doc. No. 43 at 13.) The defendant addresses this claim in its Reply. (Doc.
No. 48 at 11.)
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2013) (quoting Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th Cir. 2000)). A plaintiff
can satisfy the fourth element “through comparison to ‘another employee who is similarly situated
in her or his ability or inability to work [and] received more favorable benefits.’” Id. (quoting
Ensley–Gaines v. Runyon, 100 F.3d 1220, 1226 (6th Cir. 1996)).11
If the plaintiff succeeds in establishing a prima facie case with indirect evidence, the burden
shifts to the employer to provide a legitimate, nondiscriminatory reason for its adverse
employment decision. Asmo v. Keane, Inc., 471 F.3d 588, 592 (6th Cir. 2006). If the employer is
able to do so, the burden shifts back to the employee, who, in order to defeat a motion for summary
judgment, must show that the employer’s articulated reason was a pretext for intentional
discrimination. Id.
A plaintiff may also prove a PDA claim if she presents “direct evidence that, in treating a
plaintiff adversely, the defendant was motivated by discriminatory animus.” Kocak v. Cmty.
Health Partners of Ohio, Inc., 400 F.3d 466, 469 (6th Cir. 2005) (citing Ensley-Gaines, 100 F.3d
at 1224). “Discrimination ‘because of sex,’ under the PDA, must be ‘because of or on the basis of
pregnancy, childbirth, or related medical conditions.’” Id. (quoting 42 U.S.C. § 2000e(k)). “Direct
evidence is evidence that proves the existence of a fact without requiring any inferences.” Rowan
v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Thus, “direct evidence is
that evidence which, if believed, requires a conclusion that unlawful discrimination was at least a
motivating factor in the employer’s actions.” Kocak, 400 F.3d at 470 (quoting Jacklyn v. Schering-
Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)). If a plaintiff proffers
11 “While Title VII generally requires that a plaintiff demonstrate that the employee who
received more favorable treatment be similarly situated ‘in all respects,’” the PDA requires only
that the non-pregnant comparator employee be similar in his or her “ability or inability to work.”
Ensley-Gaines, 100 F.3d at 1226 (first quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th
Cir. 1992); then quoting 42 U.S.C. § 2000e(k)).
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direct evidence of discrimination, “the burden of persuasion shifts to the defendant to show that it
would have [taken the adverse employment action] had it not been motivated by discrimination.”
Id.
The Parties’ Arguments
In support of its Motion for Summary Judgment, ACS presumes that Hay intends to rely
on indirect evidence of pregnancy discrimination. It argues, first, that she cannot establish a prima
facie case of pregnancy discrimination because (1) she voluntarily resigned, which is not an
adverse employment action; (2) even if she is considered to have been terminated, the termination
was because of her refusal to return to work full-time following FMLA leave and “ACS’s corollary
inability to create a specific, shortened schedule for Hay based on her childcare needs”; (3) Hay
cannot show that any similarly situated, non-pregnant employees asked for or received “the type
of special schedule Hay requested”; and (4) the length of time between Hay’s announcement of
her pregnancy (July 14, 2022) and the termination of her employment (May 4, 2023) is not
sufficiently short, standing alone, to give rise to an inference of causality. (Doc. No. 32 at 11–14.)
Second, ACS argues that, even assuming that the plaintiff can establish a prima facie case
of pregnancy discrimination, she cannot show that ACS’s non-discriminatory reason for separating
her from her employment—her unequivocal refusal to return to her full-time Transfer Coordinator
position, working three twelve-hour shifts per week—is pretext for discrimination. (Id. at 13–14.)
More specifically, it argues that the plaintiff cannot show that ACS did not reasonably and honestly
believe that the plaintiff resigned on May 4, 2023 when she asked how to return her equipment
and hung up on Hall, as established by all of its subsequent communications with her.
The plaintiff responds by arguing that she has direct evidence of pregnancy discrimination.
Specifically, she claims that, when she was removed from her charge nurse duties while she was
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pregnant, she was “explicitly told that pregnancy was the reason.” (Doc. No. 43 at 11 (citing Hay
Dep. 61; ACS 000113).) Hay asserts that the defendant has not addressed this claim and therefore
is not entitled to summary judgment.
In addition, she argues that she was subjected to pregnancy discrimination when she “was
not allowed to change her schedule for pregnancy-related reasons,” while other employees were
allowed to change their schedules and to transition to PRN and part-time schedules for non-
pregnancy-related reasons. (Id. at 12.) She points out that ACS itself contends that, because the
request was related to “personal childcare needs (rather than a medical need), ACS did not offer
Hay the hours for which she was asking.” (Id. (citing ACS SUMF ¶¶ 48, 37).) Hay insists that this
shows that ACS treated her different “because of the pregnancy- and motherhood-related reason
for her request.” (Id.)
Hay also denies asking for a “special schedule” and characterizes her request as simply a
request to move to part-time or PRN. She contends that ACS asked her for her preferred
availability and that, in response, she sent in her preferred schedule but always qualified it by
emphasizing that she could be flexible. ACS, however, never explained to her that it would not
accommodate a reduced-shift schedule and never offered her the opportunity to move to part-time
or PRN work, despite the availability of such positions. She also points out that her May 3 email
does not appear to be the catalyst for the decision not to allow her to work part-time. Rather, the
evidence makes it clear that the decisionmakers had already decided by May 1 that they would not
accommodate her request for a modified schedule, citing McClure’s May 1, 2023 email stating
that partial morning shifts were not available and that she was “not interested in creating exceptions
for a staffing need I do not have,” in response to emails from Galbreath, explaining that the plaintiff
wanted “reduced hours due to her new baby,” wanted to work three six-hour shifts per week, and
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was available only in the morning. (Doc. No. 41-7 at 75, 74.) The plaintiff asserts that the evidence
is “easily” sufficient to show that ACS discriminated against her based on sex, pregnancy, and
motherhood. (Doc. No 43 at 13.)
ACS replies that the plaintiff’s claim that she was discriminatorily removed from charge
nurse duties because of her pregnancy is not alleged in the Complaint, was not exhausted in the
plaintiff’s EEOC charge or amended charge, and in any event is not supported by direct evidence.
(Doc. No. 48 at 10.) As for the plaintiff’s scheduling-related discrimination claim, ACS maintains
that the plaintiff lacks direct evidence, as ACS’s denial of a schedule tailored to the plaintiff’s
“personal childcare needs” is not direct evidence of sex or pregnancy discrimination. (Id.) The
plaintiff filed a Surreply, arguing that all of her claims are fully exhausted and that “what [she]
actually requested . . . was a modified schedule for two months for her breastfeeding and recovery,”
not merely “childcare,” and that no one at ACS ever asked her why she wanted a modified
schedule. (Doc. No. 55 at 10 (citing Hay Dep. 129–30, 136, 139, 146, 156–57).) In addition,
however, she argues that the court should consider circumstantial evidence.
Discussion
First, regarding the plaintiff’s discrimination claim based on her having been removed from
charge nurse duties because of her pregnancy, the court finds that this is an entirely new claim that
is not pleaded in the Complaint. The Complaint focuses exclusively on the defendant’s alleged
unwillingness to provide FMLA leave, refusal to allow Hay to return to work part-time or PRN,
and refusal to reinstate her to her former position or an equivalent position when her FMLA leave
terminated. (See generally Doc. No. 1.) Although Hay asserts pregnancy discrimination claims
under various statutory schemes, she does not allege facts—or assert claims based on facts—
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showing that she was treated differently or suffered an adverse employment action prior to taking
FMLA leave because of her pregnancy.
It is well settled in the Sixth Circuit that a “plaintiff may not expand [her] claims to assert
new theories in response to summary judgment.” Renner v. Ford Motor Co., 516 F. App’x 498,
504 (6th Cir. 2013) (citing Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 400 (6th Cir.
2007)). Instead, “[a]t the summary judgment stage, the proper procedure for plaintiffs to assert a
new claim is to amend the complaint in accordance with Rule 15(a).” Id. (quoting Tucker v. Union
of Needletrades, 407 F.3d 784, 788 (6th Cir. 2005)). The Sixth Circuit has regularly declined to
consider claims articulated for the first time in response to summary judgment or on appeal.
Accord, e.g., Dibrell v. Rex, No. 25-5334, 2025 WL 3285587, at *7 (6th Cir. Nov. 25, 2025)
(affirming summary judgment on the defendant’s malicious prosecution claim based on allegations
that the plaintiff had knowingly made false statements to the grand jury and declining to consider
the plaintiff’s “alternative” “continued-prosecution” theory of malicious prosecution raised for the
first time in his opposition to the defendant’s motion for summary judgment); Vonderhaar v.
Waymire, 797 F. App’x 981, 990–91 (6th Cir. 2020) (declining to consider the plaintiff’s new
FMLA-interference theories, not alleged in the pleading but argued in response to summary
judgment).
Although Hay testified about her then-supervisor’s decision to take her off charge nurse
duties during her May 2025 deposition, Hay did not seek to amend her pleading to allege this claim
after her deposition. Asserting the claim for the first time in response to the Motion for Summary
Judgment constitutes the type of “unfair surprise” the rule was designed to prevent. Vonderhaar,
797 F. App’x at 990. The court therefore declines to consider this claim on summary judgment or
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to deem the Complaint amended to assert it.12
The issue then is whether ACS’s treatment of the plaintiff’s request to work a reduced
schedule constitutes discrimination in violation of the PDA. The plaintiff, as set forth above, insists
that she has presented direct evidence of discrimination. The court finds, however, that she has not
presented direct evidence of discrimination based on sex or pregnancy. All of the evidence to
which the plaintiff refers concerns the denial of what the ACS decision-makers perceived as a
request for a reduced schedule based on Hay’s own and her new family’s scheduling issues. The
plaintiff points to no direct evidence that proves, without the need to draw inferences, that ACS’s
ultimate denial of her request was based on her sex or pregnancy.
For instance, Hay’s pointing to ACS’s “admission” that it denied her request because it
was “based on personal childcare needs (rather than a medical need)” (see ACS SUMF ¶ 37) does
not support her claim. Although the Sixth Circuit does not appear to have directly addressed this
issue, Judge Todd Campbell of this court has held that discrimination based on parenthood and
childcare needs does not violate Title VII, because there is nothing inherently gendered about
childcare. See Mayberry v. Endocrinology-Diabetes Assocs., 926 F. Supp. 1315, 1326 n.13 (M.D.
Tenn. May 31, 1996) (Campbell, J.) (“[Plaintiff’s] need for different work hours has to do with
being a parent, not with being pregnant, and parents are not a protected class under Title VII.”).
And other federal appellate and district courts outside the Sixth Circuit have consistently held that,
absent some contextual support for an inference of gender discrimination, discrimination based on
parental status and childcare needs does not implicate Title VII or the PDA. See, e.g., Seibert v.
Lutron Elecs., 408 F. App’x 605, 608 n.1 (3d Cir. 2010) (noting that the plaintiff’s claim raised in
12 That a defendant had notice that the plaintiff may have been in possession of facts to
support this new theory of discrimination is not the same as being on notice that the plaintiff
intended to assert the claim.
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response to summary judgment that she was subjected to an adverse employment action when she
was “singled out and forced to use her vacation time simply because she was having post natal
problems with her twins,” even if it had been timely, lacked merit because “post-natal childcare
duties are not within the protections afforded by the PDA”); Adamson v. Multi Cmty. Diversified
Servs., Inc., 514 F.3d 1136, 1148 (10th Cir. 2008) (“Title VII protects neither the family unit nor
individual family members from discrimination based on their 	‘familial status’ alone.”);
Piantanida v. Wyman Ctr., Inc., 116 F.3d 340, 340 (8th Cir. 1997) (affirming dismissal of PDA
claim premised on allegations that the plaintiff was demoted “because she was a ‘new mom,”
because the “claim for discrimination based on her status as a new parent fell outside the
parameters of the PDA”); see also Dryden v. Graves, 785 F. Supp. 3d 563, 571 (D.S.D. 2025)
(“Dryden’s claims stem from the DOE’s characterization of her as a ‘new mom.’ . . . The Eighth
Circuit, however, has held that ‘claim[s] of discrimination based on [an employee’s] status as a
new parent [are] not cognizable under the PDA.’” (citing Piantanida, 116 F.3d at 342)); Guglietta
v. Meredith Corp., 301 F. Supp. 2d 209, 213–14 (D. Conn. 2004) (“Although Plaintiff seemingly
contends that her status is that of a ‘woman with a child,’ her actual claim appears to be that of a
‘woman with childcare difficulties.’ . . . This Court . . . holds that child-rearing is not a sex-plus
characteristic protected by Title VII, the Pregnancy Disability Act, or any other federal or state
antidiscrimination statute.” (collecting cases)); Pearlstein v. Staten Island Univ. Hosp., 886 F.
Supp. 260, 266 n.5 (E.D.N.Y. 1995) (“Title VII, as amended by the [PDA], ‘does not protect
people wishing to take child-rearing leaves as opposed to women seeking pregnancy leaves.’”
(quoting Record v. Mill Neck Manor Lutheran Sch. for the Deaf, 611 F. Supp. 905, 907 (E.D.N.Y.
1985))); Payseur v. W.W. Grainger, Inc., No. 88 C 5707, 1989 WL 152583, at *1 (N.D. Ill. Nov.
28, 1989) (“The PDA prohibits employment-related discrimination ‘on the basis of pregnancy,
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childbirth, or related medical conditions.’ The desire to take care of one’s child, however, is plainly
not a medical condition related to pregnancy or childbirth and is thus not protected by the PDA.”).
The only explanation the court can find in the record that the plaintiff gave ACS for needing
a reduced schedule was her need to “balance family and work life,” as set forth in her May 3, 2023
email (Doc. No. 31-2 at 120), a need to accommodate her child’s feeding schedule (Hay Dep. 136),
and a desire to work hours that would “work around [her] and [her] husband’s schedule to take
care of [their] baby (id. at 133). A baby’s feeding schedule is not a “medical condition” related to
childbirth. Thus, the sole fact that Hay was denied a request for a modified schedule following a
return to work after maternity leave, standing alone, is not evidence from which a reasonable jury
could conclude, without more, that Hay was discriminated against on the basis of some
“distinction[] based upon ‘pregnancy, childbirth, or related medical conditions.’” Grant v. Gen.
Motors Corp., 908 F.2d 1303, 1307 (6th Cir. 1990) (quoting 42 U.S.C. § 2000e(k)).
Faced with this argument in the defendant’s Reply brief, the plaintiff changes tack,
asserting in her Surreply that she did not need additional leave or a modified schedule because of
childcare needs. Instead, “what [she] actually requested . . . was a modified schedule for two
months for her breastfeeding and recovery.” (Doc. No. 55 at 10.) However, although Hay alluded
to post-partum medical issues and difficulties breastfeeding in her deposition, there is no evidence
whatsoever that she contemporaneously communicated to anyone at ACS that she was medically
(whether physically or psychologically) unable to return to work full-time following expiration of
her FMLA leave. The Sixth Circuit has noted that an employer’s denial of additional leave to an
employee who claimed that she needed the additional leave to breastfeed, because her baby refused
bottles, did not implicate the PDA, because the plaintiff “failed to produce evidence supporting
her contention that breastfeeding her child was a medical necessity.” Wallace v. Pyro Min. Co.,
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951 F.2d 351 (Table), 1991 WL 270823, at *1 (6th Cir. Dec. 19, 1991). It is clear from the record
in this case that ACS understood the plaintiff to be saying that she wanted more time at home with
her baby and did not want to work twelve-hour shifts. Denial of her request does not constitute
direct—or even indirect—evidence of discrimination in violation of the PDA (or Title VII
generally), absent evidence that the plaintiff requested a modified schedule based on some
pregnancy- or childbirth-related medical need, as opposed to a scheduling need.
The plaintiff also argues, in her Surreply, that the court should consider circumstantial
evidence and apply the McDonnell Douglas burden-shifting framework to her PDA discrimination
claim. (Doc. No. 55 at 15.) Aside from the fact that the defendant had no opportunity to respond
to the plaintiff’s Surreply, the court finds that the plaintiff cannot establish a causal connection
between her pregnancy or sex and her termination because, as discussed above, she cannot show
that the defendant had any reason to know that the plaintiff’s request for a modified schedule was
related to a pregnancy- or childbirth-related medical need as opposed to a mere scheduling need
(or the simple desire to stay home more with her young child). Moreover, the length of time
between the plaintiff’s announcement of her pregnancy (July 2022) and her termination (May
2023) is not sufficient to give rise to an inference of causation.
b) 	Title VII/PDA Failure to Accommodate
The plaintiff also asserts that she has made out a failure-to-accommodate claim under Title
VII and the PDA. In support of this claim, she asserts that she requested to “change her schedule
based 	on 	pregnancy, 	motherhood, 	and 	pregnancy-related 	conditions,” 	but 	she 	was 	not
accommodated, even though ACS had part-time shifts available. (Doc. No. 43 at 14.) This claim,
obviously, is closely related to her PDA discrimination claim.
The second clause of the PDA provides that pregnant employees “shall be treated the same
for all employment-related purposes . . . as other persons not so affected but similar in their ability
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or inability to work.” 42 U.S.C. § 2000e(k). Courts construe this clause to mean that pregnant
employees must be accommodated in cases where other employees would be given similar
accommodations for reasons other than pregnancy. Young, 575 U.S. at 229. As the Supreme Court
has explained:
[A] plaintiff alleging that the denial of an accommodation constituted disparate
treatment under the Pregnancy Discrimination Act’s second clause may make out
a prima facie case by showing, as in McDonnell Douglas, that she belongs to the
protected class, that she sought accommodation, that the employer did not
accommodate her, and that the employer did accommodate others similar in their
ability or inability to work.
Id. at 229. The PDA applies to all those “affected by pregnancy, childbirth or related medical
conditions.” Tysinger v. Police Dep’t, 463 F.3d 569, 572 (6th Cir. 2006). However, it appears that
most cases addressing claims of failure to accommodate under the PDA involve plaintiffs who
were actually pregnant at the time they requested an accommodation. See, e.g., Young, 575 U.S.
at 211; Tysinger, 463 F.3d at 571; Adduci v. Fed. Express Corp., 298 F. Supp. 3d 1153, 1156
(W.D. Tenn. 2018).
The plaintiff in this case was not pregnant at the time she requested an accommodation.
She had given birth approximately three months previously, but she did not indicate to ACS—and
has not presented evidence showing—that she had any kind of pregnancy- or lactation-related
medical condition that warranted an accommodation. The plaintiff’s assertions in her deposition
that her request for leave was related to lactation are not sufficient to establish that she had a
medical condition related to lactation. That is, for purposes of her prima facie case, the plaintiff
has not established that she belongs to the class of individuals protected by the PDA.
And even if the plaintiff’s belated assertions alone were sufficient to establish that she was
protected 	by the PDA 	(that she was 	“suffering both complications 	from 	childbirth and
breastfeeding” (Doc. No. 43 at 14–15)), there is no evidence that she told anyone at ACS that she
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was suffering from any such complications or needed any kind of pregnancy- or lactation-related
accommodation. The plaintiff asserts that an employee is “not required to volunteer medical facts
in requesting an accommodation.” (Id. at 15 n. 7 (citing 29 C.F.R. § 1636.3(h)(2), (l)(1)).) Aside
from the fact that the regulations the plaintiff cites were implemented in connection with the
Pregnant Workers Fairness Act (“PWFA”), 42 U.S.C. § 2000gg, not the PDA, these regulations
pertain to reasonable accommodations for “an employee . . . with a known limitation under the
PWFA,” but they also require the employee to “communicate that the employee needs an
adjustment or change at work due to [her] limitation (a physical or mental condition relate to
affected by, or arising out of pregnancy, childbirth, or related medical condition.” 29 C.F.R.
§ 1636.3(h)(1), (2). Here, the plaintiff never communicated such a need. Moreover, subsection
(l)(1) of the same regulation says only that the “covered entity is not required to seek supporting
documentation,” but it “may” do so. Id. § 1363.3(l)(1). In any event, the employee requesting an
accommodation must, at a minimum, explain why she needs an accommodation. Hay, however,
never communicated a mental or physical condition related to or affected by pregnancy, childbirth,
or a related medical condition. As a result, she did not request an accommodation under the PDA.
Moreover, as ACS argues, the plaintiff argues very broadly that other employees were
permitted to work short shifts, but she has not rebutted ACS’s evidence that no other employees
were regularly scheduled to work short shifts. Rather, as discussed above, see supra at 5,
employees like Amy Maddox, to whom the plaintiff points as a comparator, worked occasional
short shifts in overtime, pursuant to the employer’s need, in addition to the three twelve-hour shifts
she was regularly scheduled to work. Hay has not pointed to any employees who requested and
were granted leave, for any reason, to regularly work less than twelve hours per shift on the regular
weekly schedule. That is, she has not shown that ACS accommodated other employees similar in
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their ability or inability to work by allowing them to work regularly scheduled short shifts.
The plaintiff cannot establish a failure to accommodate in violation of the PDA.
c) 	Retaliation
In her Complaint, Hay asserts that ACS violated Title VII and the PDA when it retaliated
against her for opposing discrimination and requesting an accommodation under the PDA. (Doc.
No. 1 ¶¶ 44, 48.)
The parties presume, as does the court, that PDA retaliation claims, like other Title VII
claims, are analyzed under the McDonnell Douglas rubric. To state a prima facie case of PDA
retaliation then, the plaintiff must establish that (1) she engaged in activity protected by the PDA;
(2) defendant was aware that Hay had engaged in protected activity; (3) after she engaged in
protected activity, ACS took an adverse employment action against her; and (4) “there was a causal
connection between the protected activity and the adverse employment action.” Yazdian v.
ConMed Endoscopic Techs., Inc., 793 F.3d 634, 649 (6th Cir. 2015) (quoting Hamilton v. Gen.
Elec. Co., 556 F.3d 428, 435 (6th Cir. 2009)). Only if the plaintiff produces evidence sufficient to
support each element of the prima facie case does the burden shift to the defendant to proffer a
legitimate, non-retaliatory reason for its actions. Id. at 650.
The plaintiff asserts that she engaged in activity protected by the PDA when she
complained about pregnancy discrimination to Hall, in the same telephone call in which Hall told
Hay that she could only come back to work full-time, working three twelve-hour shifts per week.
Regarding that complaint, the plaintiff testified that she felt that she was not being treated like a
human being and was being discriminated against as a “new mother.” (Hay Dep. 160–61, 165,
168.) The defendant argues that a complaint about discrimination at the time of the adverse action
cannot support a retaliation claim. Accordingly, the defendant argues, the plaintiff has failed to
identify any protected activity. It further argues that, even if she did engage in protected activity,
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she cannot dispute the defendant’s proffered legitimate reason for its action: that she refused the
offer of reinstatement to her former position.
In her Response, the plaintiff contends that the less than one day between her complaint to
Hall and the emails the next day confirming the defendant’s position that she had resigned the day
before establishes a causal connection. Hay further argues that the defendant does not address her
retaliation claim premised on her “requesting, using, or needing a reasonable accommodation
under Title VII.” (Doc. No. 43 at 17; see also id. at 19.) She asserts that she has shown a material
factual dispute as to whether the defendant’s proffered reason for its action is retaliatory.
ACS replies that the plaintiff did not allege in her Complaint a retaliation claim premised
upon requesting a reasonable accommodation, as a result of which ACS was not required to address
any such claim in its summary judgment filing. (Doc. No. 48 at 18.) It argues that temporal
proximity in this case is irrelevant where the supposed adverse action predated the purported
protected activity and that, in any event, the plaintiff cannot rebut its proffered reason for its action.
The court finds that: (1) complaining about being discriminated against as a “new mother”
is not activity protected by the PDA; and (2) even if it were, the fact that the plaintiff voiced this
complaint after Hall told her that ACS “only had three 12-hour shifts for [Hay] to work and that
is the only way [she] could return” (Hay Dep. 161) means that the decision only to offer Hay
restoration to her full-time job could not have been in retaliation for her complaint to Hall. Insofar
as the plaintiff contends that the retaliatory actions came the next day, in the form of emails
confirming that ACS considered her to have resigned, these emails simply documented ACS’s
understanding of what had occurred in the telephone call the previous day—including its
interpretation of the plaintiff’s refusal of the offer to return to work full-time, her discussion of
returning her equipment, and her hanging up on Hall—as Hay’s resignation. Regardless, the
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adverse action about which the plaintiff has complained all along is that ACS did not allow her to
return to work part-time or PRN. That decision was made and communicated to her before Hay
complained about discrimination as a “new mother.” The retaliation claim premised on that
complaint therefore fails as a matter of law.
Regarding 	the 	plaintiff’s 	claim 	that 	she 	was 	retaliated 	against 	for 	requesting 	an
accommodation under the PDA, the court finds that the plaintiff did not allege this claim in her
Complaint, and a Response in opposition to the summary judgment motion is not an appropriate
means of pleading a new theory of recovery, as discussed above. Regardless, even if the Complaint
could be broadly construed as asserting a retaliation claim based on the denial of a request for an
accommodation, the plaintiff has not shown that she actually requested an accommodation
protected by the PDA or that the defendant was aware that she was requesting an accommodation
protected by the PDA.
That is, as discussed above, and as ACS argues (Doc. No. 48 at 16), Hay has not pointed
to any evidence suggesting that she communicated a request for a pregnancy-related medical
accommodation to ACS, as opposed to simply a request to accommodate her desire, as a new
mother, to work fewer hours in order to spend more time caring for her daughter. All of the
contemporaneous emails among ACS employees show that ACS had no reason to believe that
Hay’s request was medically based or otherwise related to her pregnancy. Jennifer McClure noted
that Hay’s request stemmed from “ha[ving] a newborn baby and . . . trying to navigate hers and
her husband’s schedules,” adding that “it is a daycare issue per my understanding from Patty’s
conversation.” (Doc. No. 31-4 at 29.). Similarly, Galbreath understood that Hay was “requesting
reduced hours due to her new baby.” (Id. at 25.) Ingram understood that Hay’s availability and
flexibility centered around her husband’s work schedule. (Doc. No. 41-7 at 73–74.) In other words,
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ACS understood Hay to be requesting an accommodation due to childcare scheduling issues. Thus,
even if the denial of a request for an accommodation under the PDA could be deemed retaliatory
(as opposed to simply discriminatory) the plaintiff has not shown that she engaged in activity
protected by the PDA or that ACS knew that she had engaged in activity protected by the PDA.
Her PDA retaliation claim fails as a matter of law.
C. 	Conclusion – ACS’s Motion for Summary Judgment
For the reasons set forth herein, ACS’s motion will be denied with respect to the plaintiff’s
FMLA retaliation claim but granted with respect to the plaintiff’s state law claims and her
PDA/Title VII claims.
IV. 	CHSI’S MOTION
Although CHSI adopts and incorporates by reference ACS’s arguments in support of
summary judgment, the primary thrust of its motion is that it is entitled to summary judgment on
all claims against it because it was not the plaintiff’s employer or joint employer. Rather, it is an
indirect corporate parent of ACS and a publicly traded holding company with no employees. The
plaintiff purports to dispute many patently undisputed facts and vigorously argues that there are
material factual disputes that preclude dismissal of CHSI as a defendant on summary judgment.
The plaintiff’s position is contrary to law and an utter waste of the court’s and the parties’ time
and resources, particularly given that there is simply no dispute that ACS was Hay’s employer and
no suggestion in the record of corporate impropriety or that ACS lacks sufficient resources to pay
any judgment against it.
A. 	Facts
At all relevant times, Katrina Hay was an employee of ACS. (See Doc. No. 15, ACS
Answer ¶ 26 (“ACS admits that it hired Plaintiff in January 2021.”); see also Doc. No. 34-4 at 13.)
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Defendant Community Health Systems, Inc. (“CHSI”) is a Delaware corporation with its
principal place of business in Franklin, Tennessee. (Doc. No. 46, Baldwin Corr. Decl. ¶ 2.) CHSI
is a “holding company that has no employees.” (Id.) CHSI has indirect subsidiaries that own or
lease 70 hospitals nationwide. (Id.) The only company of which it has a direct ownership is
CHS/Community Health Systems, Inc., which “also is a holding company with no employees.”
(Id.)
CHSPSC, LLC (“CHSPSC”) is an indirect subsidiary of CHSI. (Id. ¶ 14.)13 CHSPSC is a
separate legal entity that provides professional consulting services through contract to hospitals,
clinics and other health care-related service entities affiliated with CHSI. (Id. § 15.) It also provides
an intranet for employees of those entities to use, including employees of ACS. (Id.) CHSPSC
employs and contracts with individuals. (Id.)
ACS’s direct parent company is SS ParentCo., LLC. (Doc. No. 34-4, McClure Dep. 9.)
According to the Organizational Structure Chart attached as an exhibit to Jennifer McClure’s Rule
30(b)(6) 	Deposition 	transcript, 	the 	direct 	corporate 	parent 	of 	SS 	ParentCo., 	LLC 	is
CHS/Community Health Systems, Inc., whose direct corporate parent is defendant Community
Health Systems, Inc. (Doc. No. 34-4 at 9.) In other words, ACS is an “indirect, wholly owned
subsidiary of [CHSI],” with CHSI being “three entities removed from direct ownership” of ACS.
(Doc. No. 46, Baldwin Corr. Decl. ¶ 3.) CHSI does not operate, manage, or do business as ACS
or any other entity or business. (Id.) It does not direct or control the day-to-day operations of ACS.
(Id. ¶ 4.) It does not direct the actions of ACS employees and has not entered into any kind of joint
13 The plaintiff purports to dispute this statement, asserting, that CHSPSC’s immediate
parent corporation is CHS/Community Health Systems, Inc., and that entity’s “immediate parent
corporation” is CHSI. (PRSUMF ¶ 7.) In other words, CHSI is CHSPSC’s indirect corporate
parent.
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venture or partnership with ACS. (Id. ¶ 5.) ACS maintains its own banking and accounting records.
(Id. ¶ 6.) CHSI’s Board of Directors and ACS’s Board of Directors share some members but are
not identical. (Id. ¶ 7.) ACS has never been designated as an agent of, or authorized to act on behalf
of, CHSI. (Id. ¶ 8.)
CHSI “did not employ or contract with Katrina Hay or any other individual who worked
at [ACS].” (Id. ¶ 9.) CHSI does not “make or participate in any business, medical, or employment
decisions or actions” undertaken by ACS, including those at issue in this case, and was not
“involved in any decisions or actions relating to Katrina Hay or any other individual’s employment
or contractual relationship with [ACS].” (Id. ¶¶ 10, 12.)
“CHS” and “Community Health Systems” are “trade names.” (Id. ¶ 13.) “[T]hey are not
legal entities.” (Id.) CHS/Community Health Systems, Inc., which is a direct subsidiary of CHSI
but also a legal entity separate and distinct from CHSI, owns the trade names “CHS” and
“Community Health Systems” and the CHS logo. (Id. ¶¶ 2, 13.) CHSPSC, through a licensing
agreement with CHS/Community Health Systems, Inc., grants ACS a limited, non-exclusive
license to use the CHS logo and trade names. (Doc No. 54-2, Baldwin Supp. Decl. ¶ 4.)
Many of the individuals involved in the employment decisions relating to Hay identified
themselves as employed by CHSPSC while acting as agents or representatives of ACS, including
Ginger Hearn, Stephanie Hall, Matt Ingram, and “other HR team members.” (See, e.g., Doc. No.
41-9, Hearn 30(b)(6) Dep. 136–37 (agreeing that Hearn, who was designated as a corporate
representative of ACS, is employed by CHSPSC, considered herself as an “agent or representative
that supports ACS” in her job as HR director, and that other CHSPSC employees engaged in HR
roles for ACS were “agents or representatives of ACS, supporting [ACS] in the HR role”); Doc.
No. 41-7, Hall Dep. 13 (identifying herself as Human Resources Manager for CHSPSC who, at
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the relevant time, was engaged in supporting ACS); see also Doc. No. 41-6, McClure 30(b)(6)
Dep. 16 (stating that ACS does not have its own HR department and that CHSPSC “does HR for
ASC”).) According to Russell Baldwin, Vice President and Chief Litigation Counsel for CHSPSC,
CHSPSC provides “professional consulting services” to CHSI-affiliated entities, including ACS,
through a Professional Services Agreement. (Doc. No. 54-2, Baldwin Supp. Decl. ¶ 3; Doc. No.
54-2 at 6, Professional Services Agreement.)
The other individuals involved in the employment decisions affecting Hay, including
Jennifer McClure, Patricia Galbreath, and Trina Swift, all testified that they were employed by
ACS. (See Doc. No. 41-5, McClure Indiv. Dep. 13; Doc. No. 41-5, Galbreath Indiv. Dep. 11; Doc.
No. 41-10, Swift Dep. 7.)
The plaintiff purports to dispute CHSI’s statement that it did not direct the actions of ACS’s
employees and that ACS was not an agent for CHSI, asserting that “ACS’s officers and employees
are directed by CHS,” a term it does not define. (Doc. No. 52, Pl.’s Resp. to CHSI’s SUMF
(“PRSUMF”) ¶ 10.) In support of her insistence that “ACS’s officers are directed by CHS,” Hay
asserts that at least one of ACS’s directors is “also an agent of CHS,” that Jennifer McClure
testified that she was the senior executive of ACS, that McClure testified that she reported directly
to CHSPSC Executive Vice President of Operations and Development Kevin Stockton, that
Stockton’s “‘Executive Retention Case Award’ was filed as part of CHS’s quarterly and Annual
Report in 2024,” and that that award was “included in CHS’s Annual Report as an exhibit to ‘Item
10. Directors, Executive Officers, and Corporate Governance.’” (Id.) Hay also points out that
“CHS” has adopted a Code of Conduct that applies to all “directors, officers, employees, and
consultants” of CHS-affiliated entities, which, the plaintiff claims, further establishes that “CHS”
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“directs the actions of its affiliates and employees through this program and the Code of Conduct.”
(Id.)
CHSI points out that, as a publicly traded company, it and its subsidiaries are required to
adopt a compliance program and code of conduct, and each affiliated entity adopts the Code of
Conduct through its own board or managing member. (Baldwin Corr. Decl. ¶¶ 16–17.)
The plaintiff contends generally, without evidentiary support and, apparently, with scant
knowledge of corporate law, that “CHS” “jointly and ultimately” employed “all individuals” who
were deposed in this case and identified themselves as ACS employees, because “CHS” was the
“ultimate parent company and beneficiary of their employment.” (PRSUMF ¶ 23.)
B. 	Discussion
All of the statutory schemes under which the plaintiff proceeds define the term “employer,”
and all of them require that the “employer” employ at least a certain minimum number of
employees. See, e.g., 42 U.S. §§ 2000e(b) (defining “employer,” for purposes of Title VII and the
PDA, as “a person engaged in an industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks in the current or preceding calendar
year, and any agent of such a person”); 29 U.S.C. § 2611 (defining “employer” for purposes of the
FMLA as “any person engaged in commerce or in any industry or activity affecting commerce
who employs 50 or more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year,” including “any person who acts, directly or
indirectly, in the interest of an employer to any of the employees of such employer” and the
“successor in interest of an employer”).
“Entities that do not otherwise meet the definition of employer (either because they do not
formally employ the plaintiff or do not meet the numerosity requirement) may still face liability
through the single-employer or joint-employer doctrines.” Sanford v. Main St. Baptist Church
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Manor, Inc., 449 F. App’x 488, 491 (6th Cir. 2011) (citation omitted). In addition, if a “person or
entity that took the allegedly illegal employment action was acting as the agent of another
company,” that other company “may then be held liable as the plaintiff[’s] employer.” Passmore
v. Mapco Express, Inc., 447 F. Supp. 3d 654, 663 (M.D. Tenn. 2017) (quoting Swallows v. Barnes
& Noble Book Stores, Inc., 128 F.3d 990, 993 (6th Cir. 1997)).
The plaintiff here, without actually conceding that CHSI was not her direct employer and
did not itself employ any employees, maintains that CHSI is nonetheless liable under at least one
of these three theories. (See generally Doc. No. 51.) She also argues that the court cannot simply
take CHSI’s corporate representative’s word for it that CHSI did not employ Hay and that CHSI
must instead “put forward undisputed and material facts that prove no jury would find [it] liable.”
(Doc. No. 51 at 10.)
On these latter points, the plaintiff is simply incorrect. Russell Baldwin, as Vice President
and Chief Legal Counsel for CHSPSC, is competent and qualified to testify generally regarding
CHSI’s legal structure and specifically that CHSI did not employ Katrina Hay or anyone else. (See
Baldwin Corr. Decl. ¶¶ 2–3, 9.) Moreover, the plaintiff bears the burden of proving that CHSI was
her employer, which means she is required to produce actual evidence that calls Baldwin’s
testimony into question. That is, in response to a motion for summary judgment arguing,
essentially, that there is no evidence establishing that CHSI is the plaintiff’s employer, the plaintiff
must put forward evidence creating a material factual dispute as to whether CHSI was her
employer. Passmore, 447 F. Supp. 3d at 664 (citing Tipton v. Northrup Grumman Corp., 242 F.
App’x 187, 190 (5th Cir. 2007); Sanford 449 F. App’x at 495)).
1. 	Single-Employer Doctrine
“It is well established that a parent corporation and a subsidiary are in law separate and
distinct entities.” Tenn. Valley Auth. v. Exxon Nuclear Co., 753 F.2d 493, 497 (6th Cir. 1985).
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However, under the “single-employer” or “integrated enterprise” doctrine, “two companies may
be considered so interrelated that they constitute a single employer subject to liability” for
employment discrimination. Passmore, 447 F. Supp. 3d at 662 (quoting Swallows, 128 F.3d at
993). Courts consider the following four factors in determining whether two companies should be
deemed a single employer: “(1) common ownership, (2) common management, (3) centralized
control of labor relations, and (4) interrelation of operations.” N.L.R.B. v. Palmer Donavin Mfg.
Co., 369 F.3d 954, 957 (6th Cir. 2004) (citing Swallows, 128 F.3d at 993–94). “The presence or
absence of any of these factors is not conclusive, but ‘control over labor relations is a central
concern.’” Sanford, 449 F. App’x at 494 (quoting Swallows, 128 F.3d at 994). Thus, where a
corporate parent and subsidiary are alleged to be a single employer, the “integrated enterprise”
analysis “ultimately focuses upon whether the parent corporation was the final decision-maker
with regard to the employment issue underlying the litigation.” Takacs v. Hahn Auto. Corp., No.
C-3-95-404, 1999 WL 33117265, at *4 (S.D. Ohio Jan. 4, 1999) (citing Swallows, 128 F.3d at 995
(6th Cir. 1997)); see also Passmore, 447 F. Supp. 3d at 665 (same); Smith v. The Cheesecake
Factory Restaurants, Inc., No. 3:06-00829, 2010 WL 441562, at *11–12 (M.D. Tenn. Feb. 4,
2010) (Haynes, J.) (same).
In this case, the plaintiff presents some evidence that ACS and CHSI, as its corporate
grandparent, share common ownership and share some common corporate officers. What the
plaintiff cannot dispute, however hard she tries, is that CHSI has no employees and that ACS
employees, assisted by HR personnel employed by CHSPSC but acting as agents for ACS,14 made
all of the personnel decisions at issue in this case. The court finds this factor to be determinative
14 Notably, CHSPSC is not named as a defendant in this lawsuit. Even if it had been, it is
clear from the evidence in the record that CHSPSC’s HR personnel acted as agents for ACS, not
the other way around. ACS did not act as an agent of CHSPSC.
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and, therefore, that ACS and CHSI did not act as a single employer. The plaintiff’s attempts to
obfuscate the distinctions between the various entities at issue here—particularly by using the trade
name “CHS” to refer interchangeably to CHSI, CHSPSC, and other CHS-affiliated entities—and
to create a factual dispute on that point are unavailing.
2. 	Joint Employer Doctrine
The joint-employer doctrine applies when the plaintiff establishes that “a business that
maintains sufficient control over some or all of the formal employees of another business as to
qualify as those employees’ employer.” Sanford, 449 F. App’x at 491. Generally, “[w]hether a
joint employer relationship exists depends upon ‘such factors as the supervision of the employees’
day to day activities, authority to hire or fire employees, promulgation of work rules and conditions
of employment, work assignments, [and] issuance of operating instructions.’” N.L.R.B. v. Centra,
Inc., 954 F.2d 366, 370 n.2 (6th Cir. 1992) (quoting W.W. Grainger, Inc. v. NLRB, 860 F.2d 244,
247 (7th Cir. 1988)). Similarly, courts have found joint employer status to exist when “two or more
employers exert significant control over the same employees—where from the evidence it can be
shown that they share or co-determine those matters governing essential terms and conditions of
employment.” Carrier Corp. v. N.L.R.B., 768 F.2d 778, 782 (6th Cir. 1985). The primary factors
to be considered are “an entity’s ability to hire, fire or discipline employees, affect their
compensation and benefits, and direct and supervise their performance.” E.E.O.C. v. Skanska USA
Bldg., Inc., 550 F. App’x 253, 256 (6th Cir. 2013). Deciding whether joint employer status exists
requires looking “holistically . . . at the totality of the factors in the aggregate, rather than requiring
satisfaction of all the factors.” Edmondson v. Nissan N. Am., Inc., No. 3:22-cv-00513, 2024 WL
4635051, at *10 (M.D. Tenn. Oct. 30, 2024) (Crenshaw, J.) (citing Sanford, 327 F. App’x at 594).
Here again, in short, nothing in the record suggests that CHIS controlled the day-to-day
operations of ACS, dictated the terms and conditions of Hay’s employment, including her
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compensation and benefits, or had any input in the decisions that led to Hay’s termination. The
plaintiff’s reliance on ACS’s use of the trade name “CHS” in many of its materials does not change
this analysis, nor does the relationship between ACS and other CHS-affiliated entities or between
ACS and CHSPSC—which, again, is not named as a defendant (and which also was not the
plaintiff’s employer). The plaintiff’s unsupported assertions that a “reasonable jury could find that
CHS shared or co-determined essential terms and conditions of Plaintiff’s employment, including
job duties, payroll, benefits, policies, discipline, and supervision” (Doc. No. 51 at 19) are simply
that—unsupported assertions. The plaintiff has not shown that CHSI and ACS operated as the
plaintiff’s joint employer.
3. 	Agency
Simple agency law may also form the basis of liability on the part of an entity that did not
actually employ a plaintiff. Thus, this “third approach examines whether the person or entity that
took the allegedly illegal employment action was acting as the agent of another company, which
may then be held liable as the plaintiffs’ employer.” Swallows, 128 F.3d at 993 (citing Deal v.
State Farm Cty. Mut. Ins. Co. of Tex., 5 F.3d 117 (5th Cir. 1993)). “An agent is one who consents
to act on behalf of another and subject to the other’s control.” Id. at 996 (citing Restatement
(Second) of Agency § 1 (1958)); see also, e.g., 29 U.S.C. § 2611(4)(A)(ii)(I) (defining “employer”
under the FMLA as including “any person who acts, directly or indirectly, in the interest of an
employer to any of the employees of such employer”). “An agent within the context of the ADEA
and other employment discrimination statutes must be an agent with respect to employment
practices.” Swallows, 128 F.3d at 996.
The plaintiff argues that agency law provides for a claim against CHSI, because
ACS works solely with CHS affiliates and for the direct or indirect benefit of CHS.
While other entities controlled other aspects of Plaintiff’s employment, ACS’s
personnel were given the authority to make the final decision about ending
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Plaintiff’s employment, which was then communicated by CHSPSC personnel. For
these and the reasons stated above, again, a reasonable juror could conclude that
the reason that ACS, CHSPSC, and CHS/CHSI were all making decisions about
Plaintiff’s employment is that they were all acting as agents of CHS, Inc.
(Doc. No. 51 at 19–20 (internal record citations omitted).) In other words, the plaintiff continues
to conflate CHS with CHSI. Regardless, she effectively concedes here that ACS employees made
the decision to terminate her employment, while CHSPSC employees, as agents of ACS,
communicated that decision to the plaintiff. None of this establishes that ACS functioned as an
agent of CHSI.
The plaintiff has failed to present any actual evidence from which a reasonable jury could
conclude that ACS functioned as an agent of CHSI with respect to its employment practices.
C. 	Conclusion – CHSI’s Motion for Summary Judgment
CHSI is entitled to summary judgment on the basis that it was not Hay’s employer, and the
plaintiff has failed to establish that it should nonetheless be deemed her employer, for purposes of
liability under the FLSA or Title VII, under the joint-employer doctrine, the integrated-
enterprise/single employer doctrine, or ordinary agency principles.
V. 	CONCLUSION
As set forth herein, CHSI’s motion (Doc. No. 34) will be granted in its entirety, and all
claims against CHSI will be dismissed. ACS’s motion (Doc. No. 31) will be granted in part and
denied in part. An appropriate Order is filed herewith.
ALETA A. TRAUGER
United States District Judge
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