United States District Court, N.D. Mississippi, Aberdeen Division
TRACI D. CUMMINS PLAINTIFF
CURO HEALTH SERVICES, LLC d/b/a/ SOUTHERNCARE, INC. DEFENDANT
SHARION AYCOCK UNITED STATES DISTRICT JUDGE
Cummins filed her Complaint  in this Court on June 1, 2015
against her former employer SouthernCare, Inc. Cummins
thereafter filed her Amended Complaint  alleging that
SouthernCare violated her rights protected by the Americans
with Disabilities Act and the Family Medical Leave Act.
SouthernCare filed a Motion for Summary Judgment 
requesting judgment in its favor on all of Cummins'
claims. Cummins responded  and SouthernCare replied 
making this motion ripe for review.
and Procedural Background
is a Registered Nurse. SouthernCare is hospice care provider.
Around June of 2013 Cummins was hired by SouthernCare's
Clinical Director Le Downing as a Case Manager. Le Downing
was Cummins' direct supervisor. After approximately one
month, Downing moved Cummins from part-time to full-time.
Cummins' duties included traveling to patients' homes
and to care facilities to provide direct care, supervising
nurse aides, and occasionally training other nurses.
Fall of 2013, Cummins applied for an open position in
SouthernCare's sales department. Community Relations
Director Scott Burroughs was in charge of the sales
department and interviewed Cummins. Burroughs hired another
candidate for the open sales position. Cummins continued
working as a Case Manager. The person that Burroughs hired
for the sales position did not work out, and the position was
open again in January of 2014. Cummins continued to express
her interest in the position to Burroughs. Although the two
had some informal discussions about the sales position,
Burroughs did not formally re-interview Cummins, and did not
hire anyone to fill the position.
February of 2014, Cummins injured her shoulder while treating
a patient. Because of her injury, Cummins was restricted from
lifting more than ten pounds. SouthernCare placed Cummins on
light duty and reassigned her to work in the office. Cummins
continued to work in the office for several months. In June
of 2014 SouthernCare was acquired by Curo Health Services.
continued to request an interview for the sales position that
remained open. On July 14, 2014, Cummins again approached
Burroughs and requested an interview. According to Cummins,
Burroughs gave her a brief and informal interview. Later that
day, Burroughs and Downing laid Cummins off.
Amended Complaint, Cummins alleges that SouthernCare fired
her because of her physical disability and refused to provide
her with a reasonable accommodation in violation of the
Americans with Disabilities Act (ADA). Cummins further
alleges that SouthernCare failed to provide her with notice
and opportunity for leave as required by the Family Medical
Leave Act (FMLA).
Motion for Summary Judgment, SouthernCare argues that Cummins
does not qualify as an individual with a disability under the
ADA, that Cummins never requested an accommodation, that
SouthernCare provided an accommodation until it could no
longer do so without creating undue hardship, and that
Cummins was not fired because of her disability but was
instead terminated as part of a general reduction in force.
Cummins' claim brought under the FMLA, SouthernCare
argues that Cummins never requested leave and that even if
she had it was not available to her. SouthernCare requests
that the Court enter judgment in its favor on all of the
Rule of Civil Procedure 56 governs summary judgment. Summary
judgment is warranted when the evidence reveals no genuine
dispute regarding any material fact, and the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The rule “mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
moving party “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Id. at 323, 106 S.Ct. 2548. The
nonmoving party must then “go beyond the
pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.'”
Id. at 324, 106 S.Ct. 2548 (citation omitted). In
reviewing the evidence, factual controversies are to be
resolved in favor of the non-movant, “but only when . .
. both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). When such contradictory
facts exist, the Court may “not make credibility
determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120
S.Ct. 2097, 147 L.Ed.2d 105 (2000).
prohibits discrimination on the basis of an employee's
disability. Under the ADA, it is unlawful for an employer to
“discriminate against a qualified individual on the
basis of disability in regard to job application procedures
[. . .] discharge of employees, [. . .] and other terms,
conditions, and privileges of employment.” 42 U.S.C.
as here, the Plaintiff produces no direct evidence of
discrimination, but instead relies on circumstantial evidence
to sustain her case, the Court applies the familiar
McDonnell Douglas burden-shifting framework to
determine whether she can sustain her claim. Demarce v.
Robinson Prop. Grp. Corp., 642 F. App'x 348, 352
(5th Cir. 2016). To establish a prima facie case of
discrimination the plaintiff must show: “(1) that she
has a disability; (2) that she was qualified for the job;
[and] (3) that she was subject to an adverse employment
decision on account of her disability.” E.E.O.C. v.
LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014)
(adopting the specific elements of a prima facie
case as outlined in Zenor v. El Paso Healthcare Sys.,
Ltd., 176 F.3d 847, 853 (5th Cir. 1999)).
Plaintiff successfully establishes a prima facie
case of discrimination, the burden shifts to SouthernCare to
articulate a legitimate, non-discriminatory reason for the
adverse employment action. LHC Grp., 773 F.3d at
694. If SouthernCare articulates a reason, the burden then
shifts back to the Plaintiff to show that the proffered
reason was merely pretext. Id.
the first prong, for purposes of summary judgment,
SouthernCare concedes that the Plaintiff has a disability.
Moving to the second prong, SouthernCare argues that the
Plaintiff was not qualified for the job. A “qualified
individual” is one “who, with or without
reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or
desires.” 42 U.S.C. §12111(8). To demonstrate
qualification, the Plaintiff must show either that “(1)
she could perform the essential functions of the job in spite
of her disability, or (2) that a reasonable accommodation of
her disability would have enabled her to perform the
essential functions of the job.” Demarce v.
Robinson Prop. Grp. Corp., No. 2:12-CV-34-SA, 2013 WL
6528843, at *4 (N.D. Miss. Dec. 12, 2013),
aff'd, 642 F. App'x 348 (citing Burch v.
City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999);
see Appel v. Inspire Pharms., Inc., 428 F. App'x
279, 284 (5th Cir. 2011) (stating “an employee who
cannot perform essential job requirements, even with
accommodation, is not a qualified person with a
argues that the Plaintiff was not qualified to perform the
duties of an RN Case Manager because of her ten-pound lifting
restriction. According to SouthernCare, one aspect of the RN
Case Manager job is providing physical assistance to patients
including helping them move and turn in order to properly
examine them. SouthernCare argues that Cummins lifting
restriction prevented her from performing this essential
function. The Plaintiff argues that she could have performed
all of the essential functions of the job with a reasonable
accommodation such as adjusting her patient list or having an
aide accompany her on certain patient visits. ...