Courts regularly find that terminating an employee for violating the employer's absenteeism policy "does not run afoul of the ADA." Day, 91 F. Supp. 3d 1008, 1019 (S.D. Ohio 2015) (finding that the employee's claim failed at the prima facie stage because he was not qualified for the job due to "continued violations of the absenteeism policy" and that, even if the employee made a prima facie case, the employee had no evidence that his termination for excessive absenteeism was pretextual); see Perry v. Am. Red Cross Blood Servs., 651 F. App'x 317, 326 (6th Cir. 2016) (finding that, although attendance policy was "undoubtedly a harsh policy," the employee's claim failed at the pretext stage because it was undisputed that the employee "accrued seven unscheduled absences in a twelve-month period, and this qualified her for termination" under the policy); Vorachek v. Sec. Fed. Credit Union, No. 07-15090, 2009 WL 4506440, at *5 (E.D. Mich. Dec. 1, 2009) (finding that employee could not demonstrate that employer's stated reason for terminating her, poor attendance, was pretextual because the employee presented no evidence that the attendance policy was applied in a discriminatory fashion). It is undisputed that Burgess accrued over 80 attendance points regardless of whether his doctor's notes were real or fake. (Landig Dep. 17:13-18:2.)
In general, employers can establish call-in procedures, and they may deny FMLA leave if an employee fails to follow those instructions. See 29 C.F.R. § 825.302(d) ; Alexander v. Kellogg USA, Inc. , 674 F. App'x 496, 500 (6th Cir. 2017) ; Perry v. Am. Red Cross Blood Servs. , 651 F. App'x 317, 328 (6th Cir. 2016). Accordingly, FCA could adopt a policy requiring employees to call both Sedgwick and the FCA call-in line to report an FMLA absence.
Id. at 854. The Sixth Circuit applied this same reasoning more recently in Perry v. American Red Cross Blood Services, 651 Fed. App'x 317, 324 (6th Cir. 2016):
. See also Perry v. Am. Red Cross Blood Servs., 651 Fed.Appx. 317, 328 (6th Cir. 2016) (“‘FMLA regulations effective January 16, 2009 ... explicitly permit[ ] employers to condition FMLA-protected leave upon an employee's compliance with the employer's usual notice and procedural requirements, absent unusual circumstances.'”)
Yet this Court has observed that “it is clear that ‘not every impairment, illness or injury will constitute a disability,' especially when the plaintiff provides ‘no medical proof that [the] alleged medical condition[ ] substantially limited a major life activity.'” McGonegle v. Select Comfort Retail Corp., No. 1:19-cv-442, 2021 WL 229038, at *6 (S.D. Ohio Jan. 22, 2021) (Cole, J.) (quoting Perry v. Am. Red Cross Blood Servs., No. 3-13-1146, 2015 WL 1401058, at *2 (M.D. Tenn. Mar. 26, 2015), aff'd on other grounds, 651 Fed.Appx. 317 (6th Cir. 2016)).
” Id. (citing Jones v. Sumser Ret. Vill., 209 F.3d 851, 854 (6th Cir. 2000); Perry v. Am. Red Cross Blood Servs., 651 Fed. App'x 317, 324 (6th Cir. 2016); Younis, 610 F.3d at 361; Wiegel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 380-81 (6th Cir. 2002)). But see Lusane v. Conn-Selmer, Inc., No. 1:12 CV 2518, 2014 WL 12768814, at *5 (N.D. Ohio Aug. 12, 2014) (acknowledging arguments on both sides, and stopping short of determining whether a response may be considered in determining whether a charge has been filed, but noting that, in Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), “[t]he Supreme Court held that it should defer, under Skidmore v. Swift, 323 U.S. 134 (1944), to the EEOC's position that a document can be deemed a ‘charge' so long as it may be ‘reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.'”).
“‘Federal courts do not have subject matter jurisdiction of [ADA] claims unless [1] the claimant explicitly files the claim in an EEOC charge or [2] the claim can reasonably be expected to grow out of the EEOC charge.'” Perry v. Am. Red Cross Blood Servs., 651 Fed.Appx. 317, 324 (6th Cir. 2016) (quoting Jones v. Sumser Retirement Vill., 209 F.3d 851, 853 (6th Cir. 2000) (internal quotation marks omitted)).
“Federal courts do not have subject matter jurisdiction of ADA claims unless the claimant explicitly files the claim in an EEOC charge or the claim can reasonably be expected to grow out of the EEOC charge.” Perry v. Am. Red Cross Blood Servs., 651 Fed.Appx. 317, 324 (6th Cir. 2000) (internal quotation and alteration omitted).
SeeAcker , 853 F.3d at 789-90 (affirming summary judgment on FMLA interference and retaliation claims where the plaintiff failed timely to comply with employer's call-in policy that required employees to make one phone call to request sick leave, but two phone calls to request FMLA leave, and concluding that an employer could deny FMLA leave to an employee who failed to comply with that policy); Perry v. Am. Red Cross Blood Servs. , 651 F. App'x 317, 328 (6th Cir. 2016) (holding that the plaintiff was not denied benefits to which she was entitled where she failed to report listed absences as FMLA leave to FMLA administrator); Soutner v. Penn St. Health , No. 1:18-CV-271, 2020 WL 1531323, at *3 (M.D. Pa. Mar. 31, 2020) (finding the plaintiff failed to comply with her employer's "usual notice and procedural requirements" when she failed to designate her FMLA leave with the third-party administrator); Reese v. Zimmer Prod., Inc. , No. 1:17-cv-105-TLS, 2018 WL 4510453, at *4 (N.D. Ind. Sept. 29, 2018) (holding that an employee's failure to contact the employer's FMLA administrator to initiate leave request placed employer "within its right to deny leave"); Int'l Brotherhood of Elec. Workers Loc. 1600 v. PPL Elec. Util. Corp. , Nos. 5:16-cv-04675, 5:16-cv-04676, 2017 WL 6547138, at *1 (E.D. Pa. 2017) ("If an employee is using FMLA leave ... she must make a three-to-five minute phone call to a third-party administrator in addition to calling her supervisor
That being said, it is clear that "not every impairment, illness or injury will constitute a disability," especially when the plaintiff provides "no medical proof that [the] alleged medical conditions substantially limited a major life activity." Perry v. Am. Red. Cross Blood Servs., No. 3-13-1146, 2015 WL 1401058, at *2 (M.D. Tenn. Mar. 26, 2015), aff'd on other grounds, 651 F. App'x 317 (6th Cir. 2016). At the same time, "[a]n impairment need not prevent, or significantly or severely restrict ... a major life activity" to constitute an actual disability.