Trego v. Penske Logistics, LLC et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
MARLAYNA TREGO,
Plaintiff,
v.
PENSKE LOGISTICS, LLC,
PENSKE LEASING CO., L.P., and
BRIDGESTONE AMERICAS TIRE
OPERATIONS, LLC,
Defendants.
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Case No. 3:24-cv-00460
Judge Aleta A. Trauger
MEMORANDUM
Plaintiff Marlayna Trego pursues claims against her former employer, Penske Logistics,
LLC and Penske Leasing Co., L.P. (collectively, “Penske”), for sex and pregnancy discrimination
under 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); for discrimination, retaliation,
failure to accommodate, failure to engage in the interactive process, and forced medical leave
under the federal Pregnant Workers Fairness Act (“PWFA”), 42 U.S.C. § 2000gg et seq., and the
Tennessee Pregnant Workers Fairness Act (“TPWFA”), Tenn. Code Ann. § 50-10-101 et seq.;
discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201 et seq.; and
interference and denial of rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §
2601 et seq., and the Tennessee Maternity Leave Act (“TMLA”), Tenn. Code Ann. § 4-21-408.
(See Doc. No. 28, Am. Compl. ¶ 1.)
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Now before the court are cross-Motions for Summary Judgment filed by Penske and the
plaintiff (Doc. Nos. 43, 48), each seeking judgment in her or its favor.1 As set forth herein, the
plaintiff’s motion will be denied entirely based on obvious factual disputes. Penske’s motion will
be granted in part and denied in part.
I. 	STANDARD OF REVIEW
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
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
1 Also pending is a separate Motion for Summary Judgment filed by defendant Bridgestone
America Tire Operations, LLC (Doc. No. 45), seeking judgment in its favor on the basis that it
was never at any point the plaintiff’s employer or joint employer and did not operate as an
integrated enterprise with Penske, the plaintiff’s actual employer. That motion is addressed
separately in a Memorandum issued simultaneously with this Memorandum.
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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.
The standard of review for cross-motions for summary judgment does not differ from the
standard applied when a motion is filed by only one party to the litigation. Ferro Corp. v. Cookson
Grp., PLC, 585 F.3d 946, 949 (6th Cir. 2009); Taft Broad. Co. v. United States, 929 F.2d 240, 241
(6th Cir. 1991). On cross-motions for summary judgment, “the court must evaluate each party’s
motion on its own merits, taking care in each instance to draw all reasonable inferences against
the party whose motion is under consideration.” Taft, 929 F.2d at 248. At the same time, however,
a defendant seeking summary judgment only needs to show that the plaintiff lacks sufficient
evidence to prove a single element of a particular claim in order for the defendant to be entitled to
summary judgment on that claim. See Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir.
2014) (“As the party moving for summary judgment, Defendants bear the burden of showing the
absence of a genuine issue of material fact as to at least one essential element of Plaintiff’s claim.”).
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Conversely, when a plaintiff moves for summary judgment on her own claims, for which she
carries the burden of proof and persuasion at trial, she faces a “substantially higher hurdle.” Arnett
v. Myers, 281 F.3d 552, 561 (6th Cir. 2002); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036,
1056 (6th Cir. 2001). She must show the absence of a material factual dispute on all of the essential
elements of her claim. See Surles v. Andison, 678 F.3d 452, 455–56 (6th Cir. 2012) (“In cases
where the party moving for summary judgment also bears the burden of persuasion at trial, the
party’s ‘initial summary judgment burden is higher in that it must show that the record contains
evidence satisfying the burden of persuasion and that the evidence is so powerful that no
reasonable jury would be free to disbelieve it.’” (quoting Cockrel, 270 F.3d at 105)). The moving
party “must always bear this initial burden, whether or not the adverse party responds according
to the rules of civil procedure.” Wilson v. City of Zanesville, 954 F.2d 349, 351 (6th Cir. 1992)
(citations omitted). Summary judgment in favor of the party with the burden of proof “is
inappropriate when the evidence is susceptible of different interpretations or inferences by the trier
of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).
II. 	THE PLAINTIFF’S MOTION
A. 	Facts2
Penske is in the business of, among other things, providing transportation and freight
management services for customers with which it contracts to supply such services. (See Doc. No.
57, Pl.’s Resp. to Penske’s Statement of Undisputed Material Fact (“SUMF”) ¶ 1.) Defendant
Bridgestone America Tire Operations, LLC (“Bridgestone”) is one such customer. Bridgestone
2 The facts in this section for which no citation is provided are drawn directly from Penske’s
Response to the plaintiff’s Statement of Undisputed Material Facts (Doc. No. 59) and are
undisputed, at least for purposes of the plaintiff’s motion. All facts set forth in this section are
either undisputed or viewed in the light most favorable to Penske, as the nonmoving party vis-à-
vis the plaintiff’s summary judgment motion.
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and Penske have a contract under which Bridgestone pays Penske to deliver tires manufactured by
Bridgestone to locations directed by Bridgestone. (Doc. No. 45-1, Hillis Decl. ¶ 4; Doc. No. 51-3,
Peterman Dep. 22–26.)
Plaintiff Marlayna Trego was employed by Penske as a Class A Truck Driver from January
4, 2023 until June 5, 2024. As a Penske employee, she delivered tires manufactured by
Bridgestone. (Doc. No. 28, Am. Compl. ¶ 32.)
After the plaintiff had missed three days of work in late July 2023, her supervisor, Penske’s
Operations Manager Brian Peterman, instructed her to call Penske’s Leave Team. As Peterman
explained, under Penske policy, “once you are absent for three days, you need to contact the leave
team in order to come back to work.” (Peterman Dep. 63.) Trego called the Leave Team, and the
person who called her back after she left a message was leave team specialist Ivelis Horn. (Doc.
No. 63-2, Horn Dep. 12, 19.)
In their telephone call on July 28, 2023 (see Doc. No. 44 at 205), Trego informed Horn that
she was, or might be, pregnant. According to Horn, the plaintiff had not yet confirmed her
pregnancy, but she had an upcoming doctor’s appointment and might “need an accommodation.”
(Horn Dep. 23.) Horn did not tell the plaintiff she could not return to work until she got restrictions
from her doctor, and any discussion of accommodations at that time was hypothetical, because the
plaintiff had not actually determined whether she would need any type of restriction. (Horn Dep.
23–24.) However, Horn recalled that Trego believed “that there was another associate being
accommodated in the shuttle runs.” (Id. at 25). Horn did not know about this other employee but
told Trego that accommodations were handled on a case-by-case basis. (Id.) Horn recalled that she
did “mention” to Trego that, “if she was not able to complete her essential functions of the job, she
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would need to request a leave of absence while [they] worked through the accommodation
process.” (Id. at 24.)
On or about July 31, 2023, Trego submitted a doctor’s note that confirmed her pregnancy,
with a due date of March 12, 2024, and identified two work-related restrictions: not lifting over
twenty pounds and needing frequent water and restroom breaks. Trego told Horn that she could be
accommodated by taking water and restroom breaks as needed while on the road and, with respect
to the lifting restriction, either delivering to locations that did not require her to unload cargo or
performing a “shuttle” driver position with shorter routes.
On August 2, 2023, Horn met with her supervisor, Melissa Fegley, as well as Brian
Peterman and two other Penske managers, to discuss the plaintiff’s accommodation request. (See
Horn Dep. Ex. 1, Doc. No. 51-4 at 78.) According to Horn’s Meeting Notes, the group made the
following determinations:
• Location is unable to accommodate in the current role because the associate’s job
is touch freight [i.e., unloading freight] and will require associate to lift more than
20lbs.
• There are no other driving positions that are no[t] touch freight at that location.
• Reviewed that if we cannot accommodate in the current role what other positions
or roles can the associate do within the location. There are no other positions.
• Associate cannot help within the office with Fleet systems because it entails
confidential, and associate pay information.
(Id.)
On August 11, 2023, Horn emailed Trego, noting that Trego had “been out on a leave of
absence since 7/27/2023” and that they had “received documentation from [her] treating physician
that indicated [she is] unable to perform the duties required of a driver” due to the restrictions
identified in her doctor’s letter. (Horn Dep. Ex. 3, Doc. No. 51-4 at 88–89.) The email implied, but
did not state, that Trego could not continue to drive trucks for Penske due to her restrictions.
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According to Peterman, Penske did not have any discussions about how they could help
the plaintiff with the “lifting” parts of her job, because “the 20-pound threshold accommodation
was at such a low threshold” that it was clear to Penske that the plaintiff would not be able to
perform the essential functions of her job. (Peterman Dep. 76–77.) The company determined that
no other positions were available for her and that the only accommodation they could provide
would be for her to be out on leave. (Id. at 78; see also Doc. No. 51-5, Fegley Dep. 51 (“I know
we discussed all likely options and determined that we could not accommodate.”).) Penske
interpreted the twenty-pound lifting restriction to mean that the plaintiff would not be able to
physically lift herself into her vehicle, would not be able to lift the truck hood to perform proper
pre-trip inspections because the hood weighed more than twenty pounds, and would be unable to
“hook[] up the various trailers throughout her shift,” which also required “more than 20 pounds of
lifting.” (Fegley Dep. 53; see id. (“We can’t have someone else do those things for her because
she is a dynamic driver. She does those layovers. She is on the road by herself. There is no one
else to do those things.”).) According to Peterman, these tasks were all among the essential
functions of the plaintiff’s job. (Peterman Dep. 73.)
Regarding the freight unloading component of Trego’s job (to which the parties refer as
the “touch freight” or “throw tires” requirement), Peterman testified that this was the “main issue.”
(Peterman Dep. 72.) Penske did not have associates at all of the Bridgestone delivery sites who
would be available to unload tires in the plaintiff’s stead (Fegley Dep. 52).
In view of its inability to identify a way for Trego to continue to perform her job with a
twenty-pound lifting restriction, Trego was given leave as an accommodation. Penske maintains,
however, that it attempted to engage in the interactive process to explore reassignment as a
potential accommodation, but Trego refused to work with it. For example, Penske points out that
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Horn emailed Trego on August 11, 2023 and again on August 31, 2023, asking her if she wanted
Penske to look for other positions she might be able to perform and, if so, to complete and return
the Vacant Position Search form (see Doc. No. 59 at 42–43), but Trego never responded to this
inquiry and never completed or returned the Vacant Position Search form.
Trego claims that Penske accommodated another driver with a worker’s compensation
injury by allowing him to do only shuttle runs for approximately five months while maintaining
his position as a dynamic driver. (Pl.’s SUMF ¶ 19.) Peterman testified that this other driver had a
torn rotator cuff and, as a result, had a forty-pound lifting restriction. This driver was
accommodated by being placed on “shuttle work” for five months before he was taken off work
permanently due to the worker’s compensation injury. (Peterman Dep. 56–59.) Penske claims that
shuttle work also requires lifting more than twenty pounds. (Fegley Dep. 44; Peterman Dep. 80–
81.) 	In 	addition, 	there 	were no 	“yard 	positions” open 	at 	the 	time Trego 	requested 	an
accommodation. (Peterman Dep. 80–81.) Penske also argues that the plaintiff was unwilling to
explore other positions and refused to respond to its request to return and complete the Vacant
Position Search form. (See supra.)
Documentation beginning August 15, 2023 states that Trego was “approved for continuous
leave” under the “ADA” from July 27, 2023 until her due date of March 12, 2024 and under the
“federal PWFA / TN Maternity Leave Act” after her due date. (See, e.g., Doc. No. 51-2 at 230–
36.) Ultimately, Trego was provided leave as accommodation through her expected due date of
March 12, 2024.
Penske contracts with FMLASource, a third-party vendor, to provide administrative
support for tracking and securely storing employee medical, leave of absence, and accommodation
records. (Fegley Dep. 89.) An FMLASource letter to Trego dated November 20, 2023 indicates
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that her request for continuous leave from July 27, 2023 through January 3, 2024 under the FMLA
was denied on the basis that she was “[i]neligible” for FMLA leave based on length of employment
and hours worked. (Doc. No. 51-2 at 236.) The same letter indicates that Trego was considered
ineligible for FMLA leave after the one-year anniversary of her employment based on hours
worked. (Id. at 236–37.) Nonetheless, the same letter notified the plaintiff of her rights under the
TMLA, the PWFA, and the FMLA; explained how to request a leave of absence under the FMLA;
and incorporated an FMLA or Leave of Absence Medical Certification form and Return to Work
Certification form. (Id. at 237–47.)
The plaintiff attests, based on records apparently provided or maintained by Penske, that
her “total time” for deliveries from January 2023, when she was hired, through July 2023, when
she went out on leave, was 1,716.4 hours, including both “drive time” and “stop duration,” and her
hours for drive time alone were over 1,300. (Doc. No. 51-1, Trego Decl. ¶ 11 & Ex. 1.)
Trego gave birth on March 4, 2024. She was approved for six weeks of TMLA leave
following her delivery based on the “parameters” given to FMLASource by Penske. She received
an email from FMLASource on April 8, 2024 informing her that, based on FMLASource’s records,
she was approved for leave through April 22, 2024 and was expected to return to work on her “first
regularly scheduled work day following this date.” (Doc. No 51-2 at 248.) However, the same
letter also notified her that, if she needed to extend her leave, she should “please contact
FMLASource.” (Id.) She was also expressly notified that, if she “intend[ed] to take additional time
for bonding with [her] child immediately following [her] Maternity Leave, [she would] not [be]
expected to return to work at this time and . . . [would] receive an additional notice regarding the
end date for that leave.” (Id.) Alternatively, she was instructed to contact the Leave Team if she
was ready to return to work. (Id.)
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Trego did not respond to FMLASource or contact the Leave Team after receiving this
email.
On April 18, 2024, Horn reached out to Trego to follow up, reminding her that she had
been approved for leave through April 22, 2024 and was expected to return to work on April 23,
2024, unless she requested additional leave. (Id. at 252.) Horn directed Trego to reach out to
FMLASource to request an extension if she wanted to extend her leave. (Id.)
Trego responded to this email the next day, stating: “My employment was effectively
terminated when I was forced onto unpaid medical leave against my will in July 2023. I cannot
return to a job I was terminated from ten months ago.” (Id. at 254.)
Despite this response, Penske, through HR Manager Brittany Fleming, emailed and mailed
Trego another notice on May 7, 2024, asking her to review the attached “notice regarding [her]
returning to work from her approved leave of absence” and to contact Fleming if she had any
questions. (Id. at 257.) On May 15, 2024, Fleming followed up with a longer email to Trego,
detailing Penske’s attempts to contact her and “clarify[ing]” that, despite Trego’s telling Horn on
April 18, 2024 that she had been terminated in July 2023, Penske considered her to be a “current
employee” who had been “placed on an approved leave of absence” through April 22, 2024. (Id.
at 256.)
Fleming’s message also explained that Trego, in a previous notice, had been given through
May 13, 2024 to request an extension of her leave of absence but that, as of May 15, she had
neither returned to work nor requested additional leave. (Id.) Fleming continued:
Marlayna, we must hear from you regarding your leave of absence. You are
currently off work without an approved leave of absence, and your time off work
since April 22, 2024, is not attendance-protected. Please be aware that if you do not
contact FMLASource . . . and update/extend your leave of absence request or we
do not hear from you by 5:00 pm EST on May 22, 2024, we will assume you are
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no longer interested in returning to Penske and have voluntarily ended your
employment with Penske. You will be separated effective May 23, 2024.
(Id.) Fleming provided contact information for the Leave Team and FMLASource and urged Trego
to reach out if she had questions or needed further clarification. (Id. at 257.)
Trego did not respond to this notice.
On June 5, 2024, Fleming sent a letter to Trego that again detailed Penske’s attempts to
contact her about extending her leave or returning to work, noted that Trego, as of the date of that
letter, “ha[d] not contacted Penske to discuss further leave options or to report a return to work
date,” and informed her that, due to her failure to document her need for additional leave, Penske
was “forced to separate [her] from employment due to [her] lack of response.” (Id.) Trego’s last
date of employment, from Penske’s perspective, was officially June 5, 2024. (Id.)
The plaintiff, by that time, had already initiated this lawsuit. (Doc. No. 1.)
B. 	Legal Claims
As set forth above, the plaintiff’s Amended Complaint articulates claims under eight
different federal and state statutory schemes, based on varying theories of recovery. For purposes
of her Motion for Summary Judgment, the plaintiff characterizes her claims as falling into six3
different “categories”: (1) sex and pregnancy discrimination under Title VII as amended by the
PDA, the THRA, the TPWFA, and the federal PWFA; (2) denial of an accommodation and failure
to engage in the interactive process under the TWPFA and PWFA; (3) being subjected to “forced
leave” in violation of the TWPFA and PWFA; (4) disability discrimination under the “regarded
as” prong of the ADA; (5) denial of leave rights under the FMLA and the TMLA; and (6)
3 She asserts that there are five categories but analyzes them as six categories.
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retaliation for engaging in protected activity. (See Doc. No. 49 at 6 (citing Doc. No. 28, Am.
Compl. ¶¶ 81–169); id. at 14.) She seeks summary judgment in her favor on all of these claims.
1. 	Category 2: Failure to Accommodate and Failure to Engage in the Interactive
Process Under the TPWFA and PWFA
The TPWFA, enacted in June 2020, requires covered employers to engage in the interactive
process and make reasonable accommodations for employees who have “medical needs arising
from pregnancy, childbirth, or related medical conditions . . . , unless the employer demonstrates
that the accommodation would impose an undue hardship on the operation of the business of the
employer.” Tenn. Code Ann. § 50-10-103(b)(1). Similarly, the federal PWFA, which was enacted
on December 29, 2022 and took effect on June 27, 2023, requires covered employers4 to “make
reasonable accommodations to the known limitations related to the pregnancy, childbirth, or
related medical conditions of a qualified employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the business of such
covered entity.” 42 U.S.C. § 2000gg-1(1). A “known limitation” includes a “physical or mental
condition related to, affected by, or arising out of pregnancy, childbirth, or related medical
conditions.” Id. § 2000gg(4).
While “the terms ‘reasonable accommodation’ and ‘undue hardship’” as used in the PWFA
“have the meanings given such terms” in the ADA, 42 U.S.C. § 2000gg(7), the PWFA and TWPFA
expressly require accommodations for “known limitations for medical needs arising from [an]
employee’s pregnancy, childbirth, or related conditions,” Tenn. Code Ann. § 50-10-103(b)(1),
4 Under both statutes, a covered employer is one that employs fifteen or more employees.
Tenn. Code Ann. § 50-10-102(2); 42 U.S.C. § 2000gg(2)(B)(i). There is no dispute in this case
that Penske qualifies as a covered employer.
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including such common things as dehydration and frequent urination, 29 C.F.R. § 1636.3(b);5
Tenn. Code Ann. § 50-10-102(3)(B), (D) (identifying “[p]roviding more frequent, longer, or
flexible breaks” and “[m]odifying food or drink policy” as reasonable accommodations).
To be a “qualified employee” under the PWFA, the employee must be able to “perform the
essential functions” of her position, “with or without an accommodation”—but will nonetheless
still be deemed “qualified” if her inability to perform an essential function is “temporary,” “could
be performed in the near future,” and “can be reasonably accommodated.” 42 U.S.C. § 2000gg(6);
29 C.F.R. § 1636.3(f)(2). Thus, the “[t]emporary suspension of essential function(s) and/or
modifications or adjustments that permit the temporary suspension of essential function(s)” are
defined 	in 	the 	implementing 	regulations 	as 	reasonable 	accommodations. 	See 	29 	C.F.R.
§ 1636.3(h)(1)(iv). The TPWFA does not incorporate reference to the ADA’s “essential functions”
concept at all. See Tenn. Code Ann. §§ 50-10-102, -103.
a) 	Failure to Accommodate Lifting Restriction
The PWFA’s effective date of June 2023 means that caselaw interpreting it, especially at
the summary judgment stage, is scant. Accord Payne v. W. Mich. Univ., No. 1:24-cv-814, 2025
WL 3165213, at *7 (W.D. Mich. Nov. 13, 2025). The few courts considering failure-to-
accommodate claims under the PWFA have largely treated them like analogous claims under the
ADA. Id. (collecting cases); see also EEOC v. Sec. Assurance Mgmt., Inc., No. CV 25-00181,
5 Although the statute took effect a month before the plaintiff sought an accommodation
for her pregnancy, the EEOC did not issue regulations to carry out the PWFA until April 15, 2024.
The 	regulations 	went 	into 	effect 	on 	June 	18, 	2024, 	after 	this 	lawsuit 	was 	filed. 	See
https://www.federalregister.gov/documents/2024/04/19/2024-07527/implementation-of-the-
pregnant-workers-fairness-act. Obviously, Penske did not have the benefit of the regulations when
it was dealing with the plaintiff’s accommodation request, but it does not argue that the timing of
the implementation of the regulations has any bearing on its obligation to accommodate the
plaintiff’s pregnancy-related restrictions.
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2025 WL 2911781, at *4 n.4 (D.D.C. Oct. 14, 2025) (“Where the language of the PWFA mirrors
that of the ADA or Title VII, the Court applies the legal standards governing ADA and Title VII
claims to Plaintiff’s corresponding PWFA claims, as the PWFA, ADA, and Title VII all share the
same purpose: eliminating workplace discrimination.”); H.R. Rep. No. 117-27, pt. 1, at 28 (2021)
(“The PWFA uses the term ‘reasonable accommodation,’ as defined under the ADA, throughout
the bill’s text.”). Thus, to be entitled to summary judgment on a PWFA failure-to-accommodate
claim, the plaintiff must establish, as a matter of undisputed fact, that “she is a qualified
individual,” that Penske “was aware of her limitation,” and that it “failed to reasonably
accommodate the limitation.” Keiper v. CNN Am., Inc., No. 24-CV-875, 2024 WL 5119353, at *2
(E.D. Wis. Dec. 16, 2024) (citing 42 U.S.C. § 2000gg-1(1)).
The plaintiff asserts that there is no question that she was pregnant and qualified for her
position, that Penske was aware of her twenty-pound lifting restriction, and that she requested an
accommodation for that restriction. However, according to the plaintiff, Penske unreasonably
forced her to take medical leave, and the only accommodation it offered was leave, despite the
availability of other non-leave accommodations. (Doc. No. 49 at 8.)
According to the plaintiff, her lifting restriction prevented her from manually unloading
tires from her truck but did not prevent her from performing any other job function, essential or
otherwise. Penske maintains that throwing tires was an essential function integrated into nearly
every route that drivers in the plaintiff’s position did. It acknowledges that, while the plaintiff spent
more time driving than unloading, unloading freight was “critical to the successful completion of
her duties.” (Doc. No. 58 at 5.) It also argues that elimination of that function would have posed
an undue hardship on it, as the plaintiff’s proposed accommodations—eliminating the essential
unload function by hiring another employee to perform it, thus requiring Penske effectively to hire
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two employees to perform a single job designed for one person, or creating new, “no-unload”
routes for the plaintiff, which would have required a fundamental alteration in its business
operations—were unreasonable as a matter of law. (Id. at 8–9.) The plaintiff’s Reply argues that
Penske’s assertions about the fundamental nature of the lifting requirement are unsupported by the
factual record and that its assertion that the requested accommodations were unreasonable as a
matter of law are not supported by citations to actual law. (Doc. No. 60.)
As an initial matter, “[w]hether a job function is essential is a question of fact that is
typically not suitable for resolution on a motion for summary judgment.” Kellar v. Yunion, Inc.,
157 F.4th 855, 877–78 (6th Cir. 2025) (emphasis in original) (quoting Fresh Prods., LLC, 985
F.3d 509, 525 (6th Cir. 2021))). Penske’s representatives testified that lifting more than twenty
pounds was an essential job requirement, and that testimony is corroborated by the formal job
description for the plaintiff’s Truck Driver – CDL Class A position at Penske, which identifies
“what [the employee] will do” in that position as “Delivering product to customers; unload
required.” (Doc. No. 51-2 at 220 (emphasis added).) In other words, the plaintiff’s job consisted
of two things: driving a truck and unloading the truck. The physical requirements of the job
identified in the job description include the ability to “regularly lift and/or move up to 50 lbs/23kg
and occasionally lift and/or move up to 100lbs/45kg.” (Id. at 222.) Peterman testified that a single
tire weighs, at a minimum, 25 pounds. (Peterman Dep. 42.) The plaintiff testified that unloading
tires was part of her job. (See, e.g., Trego Dep. 73.) The question of whether lifting more than
twenty pounds was an essential component of Trego’s job is an obviously disputed fact, for
purposes of the plaintiff’s motion.
There is also a question of fact as to whether Penske could have eliminated that essential
component without undue hardship. Penske’s witnesses testified that all of the Driver Class A
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positions based at the Bridgestone distribution center, where the plaintiff was based, involved
“touching freight” and required lifting more than twenty pounds on a regular basis and that
requiring it to remodel its routes or to hire additional employees to unload the plaintiff’s trucks
would not have been feasible. (See, e.g., Peterman Dep. 78; Fegley Dep. 51.) See also 42 U.S.C.
§ 2000gg(7) (incorporating ADA’s definition of “undue hardship”); see also, e.g., Cooper v.
Dolgencorp, LLC, 93 F.4th 360, 372 (6th Cir. 2024) (recognizing that the ADA does not require
employers to eliminate or reallocate essential job functions or to create new positions (citations
omitted)); Toronka v. Continental Airlines, Inc., 411 F. App’x 719, 724 (5th Cir. 2011) (holding
that it would not be a reasonable accommodation under the ADA to require an employer to
eliminate essential job functions, modify job duties, reassign existing employees, or hire new
employees). In other words, for purposes of the plaintiff’s motion, there is a material factual
dispute as to whether elimination of the freight-unloading component of the plaintiff’s job for a
period of more than seven months would have posed an undue hardship on Penske. Moreover, the
plaintiff 	has 	failed 	to 	establish, 	as 	a 	matter 	of 	undisputed 	fact, 	that 	other 	non-leave
accommodations were actually available.
In sum, the plaintiff is not entitled to summary judgment on her failure-to-accommodate
claim under the PWFA or the TPWFA based on the lifting restriction imposed by her physician.
b) 	Failure to Accommodate Restroom and Water Breaks
The plaintiff also insists that she is entitled to summary judgment based on Penske’s failure
to accommodate her pregnancy-related need for frequent water and restroom breaks, which was
one of the two restrictions identified by her medical provider. (See Doc. No. 51-2 at 224.) The
plaintiff asserts that both the PWFA and the TPWFA bar an employer from seeking supporting
medical documentation regarding a request to accommodate more frequent water and restroom
breaks, see 29 C.F.R. § 1636.3(l)(1); Tenn. Code Ann. § 50-10-103(c), and that Penske violated
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this prohibition by contacting Trego’s doctor about this restriction. She also contends that Penske
thereafter repeatedly confirmed that it could not accommodate her restrictions, plural, meaning
that it could not accommodate her request for frequent restroom and water breaks. For example,
she points to the letter she received from Horn, dated August 11, 2023, which stated that Penske
had “received documentation from your treating physician that indicates you are unable to perform
the duties required of a driver . . . due to the following restrictions: No lifting more than 20 pounds
and frequent restroom and water breaks.” (Doc. No. 51-4 at 88–89.) She asserts that summary
judgment on this claim should be “granted based on this failure alone.” (Doc. No. 49 at 8.)
In response, Penske agrees that allowing a pregnant employee to take additional water and
restroom breaks as needed are “‘predictable assessments’ that ‘will, in virtually all cases, result in
a determination’ that they are reasonable accommodations.” (Doc. No. 58 at 3–4 (quoting 29
C.F.R.§ 1636.3(j)(4)).) Penske asserts, however, that the request for additional water and restroom
breaks was never part of its consideration of whether it could accommodate the plaintiff and that
it did not seek medical documentation for this need. Despite the Horn letter referenced above,
Penske’s corporate representative, Melissa Fegley, testified that Trego’s need for frequent
restroom and water breaks “didn’t make her unable to perform her job. That would not be
accommodation because, as the driver, she already has the capacity to determine when she needs
to take those breaks and for how long.” (Fegley Dep. 152.) Fegley could not explain why that
“restriction” was included in Horn’s letter, but she reaffirmed that it would “not have been an
accommodation because [drivers] already have the ability to make those determinations.” (Id. at
153.) The plaintiff, similarly, testified that restroom breaks and water breaks were completely
within her control as a driver. (Doc. No. 63-1, Trego Dep. 92.) Her supervisor, Peterman, also
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testified that additional breaks were not a problem but that “the weight restriction [was] the
accommodation that was difficult to get past.” (Peterman Dep. 72.)
Despite the fact that the restriction was referenced in Horn’s letter and in other
communications with the plaintiff, the court finds that there is, at a minimum, a question of fact as
to whether either the plaintiff or Penske considered this “limitation” to be an issue that required
accommodation. There is no evidence that the parties ever seriously disputed the matter of
bathroom breaks or that Penske ever focused on anything other than the plaintiff’s lifting
restriction. There is no suggestion in the record that, if the plaintiff’s need for frequent water and
restroom breaks had been her only “restriction,” the plaintiff would not have been permitted to
work.
As for whether Penske impermissibly requested “documentation” of the plaintiff’s
restrictions, the implementing regulations containing that prohibition were not in effect in August
2023. Even assuming that the prohibition applied, Horn’s contemporaneous notes indicate that she
called the plaintiff’s doctor’s office on August 1, 2023 to confirm “how often breaks are needed
and for how long.” (Doc. No. 51-4 at 2.) A request for additional information relating to the
identified restrictions does not, on its face, appear to violate the regulation limiting an employer’s
ability to “seek supporting documentation” of the restrictions. 29 C.F.R. § 1636.3(l).
The plaintiff is not entitled to summary judgment on this apparently trivial subclaim.
c) 	Failure to Engage in the Interactive Process
The 	PWFA’s 	regulations 	state 	that, 	“[t]o 	determine 	the 	appropriate 	reasonable
accommodation, it may be necessary for the covered entity to initiate an informal, interactive
process” for the purpose of “identify[ing] the known limitation[s] under the PWFA and the
adjustment or change at work that is needed due to the limitation[s], if either of these is not clear
from the request, and potential reasonable accommodations.” 29 C.F.R. §1636.3(h)(3) & (k). The
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TPWFA appears to require the employer to “engag[e] in a good faith interactive process with the
employee to determine if a reasonable accommodation can be provided absent undue hardship,”
Tenn. Code Ann. § 50-10-103(c), but it does not define what that process must look like or when
it is reasonable to terminate it.
The plaintiff argues that she is entitled to summary judgment on her claim that Penske
failed to engage in the interactive process. (Doc. No. 49 at 12.) She contends that the only
conversation anyone had with her was her initial conversation with Horn on July 27, 2023, before
she even knew for sure whether she was pregnant, and that no one at Penske ever discussed with
her any other potential accommodations or her actual restrictions and abilities. (Id.)
Penske responds that the plaintiff’s twenty-pound lifting restriction was unambiguous and
did not require clarification; that it engaged in the interactive process when, after it became clear
(to Penske) that it could not accommodate the plaintiff in her current role, it asked the plaintiff to
complete a Vacant Position Search form to help it identify other potential roles within the company
she could perform; and that the plaintiff abandoned the interactive process when she failed to
respond to those communications. (Doc. No. 58 at 9–10.) Even after that, Horn and Fegley,
according to Penske, continued to engage in efforts to accommodate the plaintiff. (Id. at 11.)
The plaintiff’s Reply asserts that Penske’s Vacant Position Search form was “facially
improper,” pointing to the EEOC’s Final Rule and Interpretive Guidance, Implementation of the
Pregnant Workers Fairness Act, 89 FR 29096-01 at ¶ 110, 2024 WL 1679177, at *29207 (April
19, 2024), which states that “an employer who requires an employee who requests an
accommodation due to a pregnancy-related limitation to fill out a form identifying their physical
and mental impairments would have difficulty demonstrating that this disability-related inquiry is
job-related and consistent with business necessity, as required by the ADA.” (See Doc. No. 60 at
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3–4.) Aside from the fact that the referenced guidance was issued in April 2024, the Vacant
Position Search form asked the plaintiff simply to identify other jobs she might be interested in
filling, not to identify her impairments.
In any event, the evidence in the record shows that the plaintiff communicated her
restrictions to Penske; Penske considered them and determined that leave was the only
accommodation it could offer; and it asked the plaintiff if she was interested in looking at other
possible roles within the company and, if so, to complete and return the Vacant Position Search
form. The plaintiff failed to respond. The reasonableness of Penske’s offering leave, and only
leave, as an accommodation under the circumstances presented here, as discussed above, is a
material, disputed fact. While it seems clear that Penske could have done a much better job
communicating with the plaintiff about its decision-making process, whether it was required to
continue to engage in the interactive process depends largely on whether it had any reason to do
so. Penske is correct that, when an employee’s identified restrictions and job description are clear,
the employer has no need to go back to the employee to clarify them. The PWFA’s regulations
state only that the interactive process may be necessary. The TPWFA requires an employer to
“begin engaging in a good faith interactive process,” Tenn. Code Ann. § 50-10-103(c). Whether
Penske should have done more to engage the plaintiff, after she failed to respond to its request
regarding whether she wanted it to look for other positions at her work location or at other
locations, is also a question of fact. The plaintiff is not entitled to summary judgment on this claim,
under the PWFA or TPWFA.
2. 	Category 3: Being Subjected to Forced Leave
The PWFA and TPWFA prohibit employers from forcing pregnant employees onto leave
when another reasonable accommodation would allow them to remain at work. 42 U.S.C. §
2000gg-1(4); Tenn. Code Ann. § 50-10-103(b)(2). Because, as discussed above, there is a material
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factual dispute as to whether another reasonable accommodation would have allowed the plaintiff
to remain at work, the plaintiff is not entitled to summary judgment on these claims.
3. 	Category 1: Discrimination Based on Sex and Pregnancy
The plaintiff brings (or purports to bring) sex and pregnancy discrimination claims under
the PWFA, TPWFA, THRA, and Title VII, as modified by the PDA.6 She essentially contends
that the analysis of her claims is the same under each of the statutory schemes. Her argument for
summary judgment on these claims is perfunctory at best. She asserts that (1) like the plaintiff in
Young v. United Parcel Service, Inc., 575 U.S. 206 (2015), she was forced to take long-term leave
even though the employer offered “light-duty positions for workplace injuries but not for the
plaintiff’s pregnancy” (Doc. No. 49 at 14);7 and (2) Penske’s accommodation policy, which
facially provides for accommodation only for disabilities and religion and requires that an
employee be able to “perform all essential functions of [her] job, unlike the PWFA and TPWFA”
constitutes “direct evidence of a discriminatory motive.” (Doc. No. 49 at 14.)
Even if the plaintiff assumes that Penske’s failure to update its accommodation policy after
the passage of the PWFA constitutes “direct evidence of a discriminatory motive,” the plaintiff
fails to show that Penske actually enforced this policy against her or that it refused to recognize
the legal requirements imposed by the PWFA. Moreover, the plaintiff has not established, as a
matter of undisputed fact, that Penske’s “policy treats pregnant workers less favorably than it treats
nonpregnant workers similar in their ability or inability to work.” Young, 575 U.S. at 210.
She is not entitled to summary judgment on her sex and pregnancy discrimination claims.
6 As discussed below, in connection with Penske’s motion, the PWFA and the TPWFA do
not appear to countenance discrimination claims apart from failure-to-accommodate claims.
7 The plaintiff’s situation is not comparable to the plaintiff’s in Young, because she has not
shown that Penske regularly offered light duty work to other employees with a lifting restriction
as stringent as the plaintiff’s.
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4. 	Category 4: Disability Discrimination Under the “Regarded as” Prong of the
ADA
“[T] o state the threshold condition of a ‘regarded as’ ADA claim, an employee need[s to]
show that their employer believed they had a ‘physical or mental impairment,’ as that term is
defined in federal regulations.” Babb v. Maryville Anesthesiologists P.C., 942 F.3d 308, 319 (6th
Cir. 2019). If the employee establishes that her employer “regarded” her as disabled under this
standard, “the employee must still show that [her] employer discharged [her] (or took some other
form of adverse employment action against [her]) because of, or ‘but-for,’ [her] actual or perceived
physical or mental impairment.” Id.
In the absence of direct evidence of discrimination, an employee bringing a “regarded as”
claim may rely on circumstantial evidence under the “well-trod McDonnell Douglas burden-
shifting framework.” Id. Using this framework, the plaintiff generally may establish a prima facie
case of discrimination by showing that “(1) he or she is disabled, (2) he or she is otherwise qualified
for the position, with or without reasonable accommodation, (3) he or she suffered an adverse
employment action, (4) the employer knew or had reason to know of the plaintiff’s disability, and
(5) the position remained open while the employer sought other applicants or the disabled
individual was replaced.” Id. at 320 (citation omitted).8
Regardless, once the employee establishes these elements (a “not onerous” requirement),
the employer must then offer a “legitimate explanation for its action” (also not an onerous
requirement). Id. At that point, “the burden then shifts back to the [employee], who must introduce
8 The Sixth Circuit recognizes that this test does not “map neatly into a ‘regarded as’
claim,” particularly because the first and fourth elements are already captured by the threshold
requirement that the plaintiff show that the employer “regarded her” as disabled even though she
was not. Babb, 942 F.3d at 320 n.8.
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evidence showing that the [employer’s] proffered explanation is pretextual.” Id. at 320 (citation
omitted).
The plaintiff asserts that she is entitled to summary judgment on her ADA claim. The first
problem with her position is that, even assuming she can make the threshold showing that she was
not actually disabled as that term is defined under the ADA but nonetheless was regarded as
disabled by Penske, she cannot refute the fact that she requested an accommodation in order to
continue working for Penske. If an employee is merely regarded as disabled, she ipso facto does
not need an accommodation.9
Aside from this threshold issue, the plaintiff’s argument that she is entitled to summary
judgment on her ADA claim is nearly as perfunctory as the analysis of her discrimination claim.
She asserts only that she can establish a prima facie case of discrimination. But, as set forth above,
a plaintiff’s ability to establish a prima facie case is just the first step of the analysis, even if she
has direct evidence of discrimination. Moreover, unlike when a plaintiff is merely defending
against a summary judgment motion filed by the defendant, the plaintiff, to be entitled to summary
judgment, must do more than simply adduce some facts to support each element of her prima facie
case—she must establish each element as a matter of undisputed fact. As discussed above,
however, the question of whether the plaintiff was able to perform her job with a reasonable
accommodation is a material, disputed fact. Likewise, the question of whether the defendant
reasonably concluded that the only available and reasonable accommodation for the plaintiff was
to place her on leave is a material, disputed fact.
9 Notably, when an employee alleges discrimination under a “regarded as disabled” theory,
the employer has no obligation to provide a reasonable accommodation because the individual is
not “actually” disabled. 42 U.S.C. § 12201(h) (stating that an employer “need not provide a
reasonable accommodation . . . to an individual who meets the definition of disability” under the
“regarded as” prong of the statute).
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The plaintiff is not entitled to summary judgment on her ADA discrimination claim.
5. 	Category 5: Denial of Leave Rights and Retaliation for Seeking Leave Under
the FMLA and the TMLA
a) 	FMLA Interference
Trego’s FMLA interference claim is based, first, on her allegations that she was eligible
for FMLA leave at the time she gave birth in March 2024 but was denied leave under the FMLA
based on the number of hours worked. She asserts that this was a “facial violation of the FMLA
entitling her to summary judgment.” (Doc. No. 49 at 18.) Second, she asserts that Penske was
statutorily required, and failed, to give her notice within five days of learning that she might need
FMLA leave and then terminated her for not providing certification of her need for leave, despite
not giving her the required notice. (Id.) And third, she argues that, even if she lacked the requisite
number of hours (which she disputes), Penske’s “forcing” her to use leave under the PWFA “when
she [did] not need it” “does not . . . stop her from being able to invoke the FMLA when she does
need it at a later time.” (Id. at 19 (citing Wysong v. Dow Chem. Co., 503 F.3d 441, 448–49 (6th
Cir. 2007)).) Trego analogizes her situation to the plaintiff’s in Wysong, where a pregnant
employee was forced to use FMLA leave during her pregnancy, was not allowed to return to work
until after giving birth, and therefore was “denied that leave when she actually needed it after the
birth.” (Id.) Finally, Trego asserts that “the Sixth Circuit has recognized that an employee can state
a claim for FMLA violations without showing FMLA entitlement in certain circumstances.” (Id.
(citing Milman v. Fieger & Fieger, P.C., 58 F.4th 860, 868 (6th Cir. 2023)).)
Penske argues that the plaintiff cannot prove FMLA retaliation because it repeatedly
invited her to request leave after the birth of her child, and she failed to do so. Moreover, her
separation, which took place more than thirteen weeks after she gave birth, was due to her failure
to return to work, to request leave, or to communicate with Penske.
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To prevail on an FMLA interference claim, Trego must prove that
(1) she was an eligible employee as defined under the FMLA; (2) her employer was
a covered 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 FMLA leave;
and (5) her employer denied FMLA benefits to which she was entitled.
Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017) (quoting Novak v. MetroHealth
Med. Ctr., 503 F.3d 572, 577 (6th Cir. 2007). However, even when a plaintiff establishes a prima
facie case, “[i]nterference with an employee’s FMLA rights does not constitute a violation if the
employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the
challenged conduct.” Id. at 327 (quoting Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)).
In this case, based on the facts set forth above, there is at a minimum a question of fact as
to whether Trego notified Penske of her intention to take FMLA leave. The plaintiff’s sole response
to Penske’s repeated requests for information regarding whether she wanted to extend her
maternity leave or return to work was to state her belief that she had been terminated in July 2023.
There is also a disputed question of fact as to whether the plaintiff was denied FMLA benefits to
which she was entitled. Irrespective of what statutory scheme Penske believed the leave might fall
under, the plaintiff was not formally terminated until June 5, 2024, and then only as a result of her
failure to respond to Penske’s request for information. Finally, the plaintiff’s termination thirteen
weeks after she gave birth suggests that she was, in fact, accorded more leave than the twelve
weeks of leave guaranteed by the FMLA. Thus, it is not clear that the plaintiff suffered any
damages based on the alleged FMLA interference. “If an employee does not suffer any damages,
then the FMLA does not provide a remedy.” Theiss v. Walgreen Co., 632 F. App’x 829, 833 (6th
Cir. 2015).
The plaintiff is not entitled to summary judgment on her FMLA claim.
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b) 	TMLA Violation
Trego asserts that Penske acknowledged that she was entitled to four months of leave under
the TMLA, and granted her TMLA leave, but only granted her such leave from March 12, 2024
until April 22, 2024—a period of one month, one week, and three days—and then fired her for not
returning to work in April 2024. (Doc. No. 49 at 20.) She contends that this is “direct evidence of
a TMLA violation.” (Id.)
Penske argues in response that, although FMLASource “preemptively” approved leave
under the TMLA until April 22, 2024 based on Trego’s expected due date, Trego never actually
requested leave or notified Penske of her intent to take leave under the TMLA. Instead, she told
Penske she believed she had been terminated in July 2023.
Trego also asserts that Penske violated the TMLA by not ensuring that information about
leave under the TMLA was included in its employee handbook, in violation of Tenn. Code Ann.
§ 4-21-408(e) and that this, too, is a facial violation of the TMLA. (Id.) Penske does not respond
to this argument.
As far as this court’s research reveals, there are no reported Tennessee state court or federal
court opinions outlining the elements of a TMLA claim, but the statute states, in relevant part, that
[e]mployees who give at least three (3) months’ advance notice to their employer
of their anticipated date of departure for such leave, their length of leave, and their
intention to return to full-time employment after leave, must be restored to their
previous or similar positions with the same status, pay, length of service credit, and
seniority, wherever applicable, as of the date of their leave.
Tenn. Code Ann. § 4-21-408(b)(1). Trego, however, has presented no evidence that she gave
Penske notice of her intention to take maternity leave, the length of her anticipated leave, or her
intention to return to full-time employment after leave.
Regarding Penske’s alleged “facial” violation of the TMLA based on its failure to include
reference to the TMLA in its employee handbook, the plaintiff fails to establish that she was
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harmed by that failure or, indeed, that the statute creates a private right of action based on this
administrative requirement.
The plaintiff is not entitled to summary judgment on her TMLA claim.
6. 	Category 6: Retaliation
All of the statutory schemes under which the plaintiff has asserted claims prohibit
retaliation for engaging in activity protected by those schemes, including for requesting an
accommodation. The plaintiff argues that she “easily” meets the elements of a prima facie case of
retaliation, but establishing a prima facie case is not sufficient to entitle the plaintiff to summary
judgment. She further asserts, however, that no reasonable jury could fail to find that she was
subjected to retaliation when she was “fired specifically because she took medical leave following
her delivery.” (Doc. No. 49 at 15.)
This 	assertion 	is 	totally 	without 	merit. 	The 	evidence 	in 	the 	record, 	including
FMLASource’s and Penske’s numerous communications with the plaintiff in the Spring of 2024
about whether she was requesting maternity leave or intended to return to work, is clearly more
than sufficient to permit a reasonable jury to conclude that the plaintiff was terminated because
she failed to respond to Penske’s multiple requests that she communicate her intention either to
take additional maternity leave—in addition to the leave FMLASource had preemptively granted
her, despite her never requesting maternity leave—or to return to work. The plaintiff is not entitled
to summary judgment on her retaliation claims.
C. 	Conclusion
The plaintiff has not established that she is entitled to summary judgment on any of her
claims.
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III. 	PENSKE’S MOTION FOR SUMMARY JUDGMENT
A. 	Facts
The facts set forth herein without a record citation are undisputed for purposes of Penske’s
Motion for Summary Judgment and are drawn from the plaintiff’s Response to Penske’s SUMF
(Doc. No. 57). The court will attempt not to reiterate the background facts set forth above, but
relates those facts that are particularly relevant and those that must be viewed in the light most
favorable to the plaintiff as the nonmoving party for purposes of Penske’s Motion for Summary
Judgment.
1. 	The Plaintiff’s Employment
Brian Peterman testified that Penske drivers are hired specifically to be either “dynamic,
local, yard, or route” drivers. (Doc. No. 51-3, Peterman Dep. 44–45.) Trego was hired as a
“dynamic driver.” (Doc. No. 57, Pl’s. Resp. to Penske SUMF ¶ 6.) Dynamic drivers are “regional”
drivers, driving a “sleeper” truck and doing layovers, and they do not do the same route every
week. (Peterman Dep. 44.) As Peterman explained, dynamic drivers are the highest paid, because
they are “ask[ed] . . . to do a lot.” (Id. at 45.) They work alone, doing two to three layovers per
week, and are “probably going to get a load” that requires unloading “a thousand tires.” (Id.)
Dynamic drivers may fill in for any other type of driver position on occasion. (Id. at 47–48.)
Dynamic drivers are the “Swiss Army knife of drivers.” (Id. at 48.)
Peterman also testified that Penske hauls passenger tires as well as “TBR” tires—that is,
truck, bus, and radial tires. (Peterman Dep. 35.) Passenger tires weigh anywhere from 25 to 85
pounds, while TBR tires weigh from 80 to over 200 pounds. (Id. at 42.) Peterman estimated that
60 percent of the tires Penske hauls from the Lebanon Distribution Center, out of which the
plaintiff worked, are passenger tires, and 40 percent are TBR tires. (Id. at 36.) Some delivery routes
have a single stop, and some have multiple stops. “Probably 65 percent are multi-stops and 35
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percent are one stop.” (Id. at 36.) TBR tires are more likely to be on one-stop routes. (Id. at 37.)
Peterman estimated that “30 percent” of loads from the Lebanon facility are “one stop, TBR tires.”
(Id. at 37.) Ordinarily, once a driver gets to a stop, the driver unloads every tire. (Id. at 37.)
Peterman explained how the Penske driver unloads or “bounces” tires “off the back of the trailer,
and the receiver takes them in.” (Id.) He also explained that a “lumper” is “a third-party service
that some receivers would employ, and instead of their own employees or associates assisting in
the offloading of the trailer,” the lumper would be the person assisting in offloading. (Id. at 42; see
also Trego Dep. 72–73 (explaining that, when she unloaded tires, she would “pull them down and
throw them . . . to somebody at the end of the trailer, and then they would be throwing or rolling
them into the store”).) Penske, in theory, could “pay for a lumper to offload a trailer,” but it never
does, because “unloading the tires is part of the driver’s responsibility.” (Id. at 42.)
However, if a load consists entirely of TBR tires, the driver does not unload it. She either
drops off the entire trailer and picks up an empty trailer to return to the distribution center, or she
backs the trailer into the dock, where the receiver unloads it using “mechanical means,” typically
a forklift. (Id. at 40.) Only on rare occasions would a driver, with assistance from the receiver,
unload a few TBR tires manually. (Id. at 41.)
Trego, as a “dynamic” driver, was responsible for delivering tires to, and unloading them
at, Bridgestone stores, distribution centers, and maintenance centers. (Doc. No. 63-1, Trego Dep.
72, 73.) The job description the plaintiff was given when she was hired identifies the job she would
do as “[d]elivering product to customers; unload required.” (Doc. No. 51-2 at 221.) It lists the
physical requirements of the job as being able to “regularly lift and/or move up to 50 lbs/23kg and
occasionally lift and/or move up to 100lbs/45kg.” (Doc. No. 51-2 at 222.) As Melissa Fegley
acknowledged during her deposition, however, the job description does not expressly identify what
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tasks are considered “essential” to the plaintiff’s job. (Doc. No. 51-5, Fegley Dep. 137.) According
to Fegley, the team considering Trego’s request for an accommodation came to a conclusion
regarding the essential functions in a “conversation with operations and HR and the leave team
with some consultation with safety.” (Fegley Dep. 138.) She and Peterman were the ones who
actually determined the “essential functions” as including the ability to do pre- and post-trip
inspections, in order to comply with Department of Safety (“DOT”) regulations, and the ability to
unload tires, among others. (Id. at 31.) Fegley understood, based on conversations with Peterman,
that approximately 60 percent of “delivery points” require the driver to physically unload freight.
(Id. at 32.)
According to Penske, in order for a driver to perform the DOT-mandated pre-trip
inspection, the driver must be able to lift the hood, which weighs 50 to 56 pounds; lower and raise
the “landing gear” by turning a crank, which requires the ability to lift 25 to 45 pounds; and climb
on and off the truck, the lifting requirement for which would vary based on the weight of the person
but, for the “average person [would] be over 20lbs.” (Doc. No. 51-5 at 223 (Aug. 27, 2023 email
from Jackie Garmon to Fegley, Peterson and others, referencing an “ergonomics test”).) Penske
provides no details about this ergonomics test. The plaintiff points out that Garmon refers to having
“reviewed” an ergonomics test, not having run one, and she claims that, regardless, the test he
refers to is irrelevant to her position, because “yard” trucks are different from the long-haul truck
she drove.
Trego also testified that her lifting restriction did not impact her ability to climb in and out
of her truck cab, lower or raise the landing gear, open the truck hood, or perform truck inspections
and that no one at Penske ever discussed with her the ability to do these tasks. (Doc. No. 51-1,
Trego Decl. ¶¶ 4–6; see also Trego Dep. 61 (explaining that, with the hydraulic lift, “you barely
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have to lift [the truck hood] up and it falls forward”).) According to Trego, the only task she could
not perform with her lifting restriction was “throwing tires.” (Id. ¶ 8.) Moreover, she estimated
that only about half of her “runs” (or routes) required unloading tires, and she believes this task
was “not essential to doing [her] job.” (Id.) She claims that she “could have paid a lumper fee to
have someone else do the unloading or been given runs that did not require throwing tires.” (Id.)
Trego also asserts that, while some of the other types of drivers also “touch freight,” such
as final mile drivers, others, such as shuttle drivers, do not. However, the portions of Peterman’s
deposition she cites for this position do not address whether any of these other drivers actually
“touch freight.” (See Peterman Dep. 46–48.)
2. 	The Plaintiff’s Request for Accommodations
Penske has a dedicated Leave and Accommodations Team that supports employees with
leave and accommodation requests. In July 2023, Penske provided training to the Leave and
Accommodations Team on the newly enacted PWFA. FMLASource is a third-party vendor Penske
uses to provide administrative support for tracking and securely storing employee medical, leave
of absence, and accommodation records.
On July 28, 2023, Trego spoke with leave specialist Ivelis Horn. (See Doc. No. 44 at 205.10)
As set forth above, Peterman had directed Trego to contact the Leave Team because she had been
absent for three days. (Peterman Dep. 63.) The course of this conversation is disputed. According
to Trego, she told whomever she spoke to,
10 The exhibits on which Penske relies are attached to its Statement of Undisputed Material
Facts as an undifferentiated mass, rather than as individually filed, labeled, findable exhibits,
requiring the court to undertake a veritable Easter egg hunt to locate the documents to which it
refers from among its nearly 300 pages of exhibits.
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I’m not quite sure why I even have to call you. I just had a regular doctor
appointment and [am] trying to go back to work. But you need to clear me to go
back to work is what Brian [Peterman] had told me.
(Trego Dep. 90.) She was asked what was “going on” but did not want to talk about it because it
was a “private, personal matter.” (Id.) She did not feel she should have been forced to disclose her
pregnancy at that time. (Id.) But, according to Trego, Horn told her that, if she did not disclose
what was going on medically, she could not be cleared to go back to work and would be placed on
leave. (Id.) Consequently, Trego told her that she was pregnant. (Id.)
Horn immediately asked if she needed any accommodations. (Id.) Trego told her she did
not know yet but did not think so. But she read to Horn what a Google search revealed about
common pregnancy-related accommodations, including the need to drink more water, take more
frequent restroom breaks, and not lift more than twenty pounds. (Id. at 91.) Trego felt that Horn
was interpreting what Trego was reading off the internet as a request for accommodations, because
she asked Trego how she felt the company could meet those accommodations. (Id. at 91–92.)
Trego told her the need for extra hydration and restroom breaks did not need to be accommodated,
as those issues were totally within her control, but, in any event she just wanted to go back to work.
(Id. at 92.)
Trego claims they also discussed the twenty-pound lifting restriction in this first phone call
(despite the fact that she, at that point, had no such restriction and had not seen her doctor yet).
Trego testified that she told Horn that she could be sent to locations where the receiver unloaded
or that she would be “willing to pay the lumper fee” to have someone else unload her truck. (Id. at
92–93.) Horn told her she could not go back to work until she confirmed with her doctor whether
she did or did not have restrictions. (Id. at 95.) Horn’s email to her after her phone call told her
that, if she needed leave before Penske “work[ed] through the accommodations,” she should
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contact FMLASource. (See Doc. No. 44 at 205.) Trego testified, however, that Horn told her she
was on leave during that first telephone call, specifically on unpaid leave. (Trego Dep. 97.)
Trego had a medical appointment the following Monday, where she confirmed her
pregnancy, and her doctor completed the form Horn had given her, noting the twenty-pound lifting
restriction and the need for more frequent hydration and restroom breaks. (Trego Dep. 95.) Trego
testified that, based on the way Horn’s email was phrased, she “possibly” contacted FMLASource
because “[t]hat was the only way [she] could get more information.” (Id. at 98.) Trego emailed
Horn her doctor’s restrictions on August 1, 2023 and, at the same time, asked her to confirm
whether she had been placed on leave. (Doc. No. 44 at 213.) Horn responded, “if you need a leave
until we work through the accommodations you can contact FMLA Source” and also reiterated
that Trego would “nee[d] to request the leave of absence with FMLA Source.” (Id. at 216.) She
did not respond to the question about whether Trego had been “placed” on leave.
Later the same day (August 1, 2023), Horn emailed Penske Operations Supervisors, Jimmy
Spring and Brian Peterman, and Human Resources Representative, Jackie Butera, that Trego had
“requested an in-job accommodation.” (Doc. No. 44 at 228.) Horn noted that, “[d]ue to the recent
law,” presumably referring to the PWFA, Trego is “under a protected class,” and Penske would
“need to try to accommodate her as best as we can. If there are any due [sic] hardships, we can
schedule a call and discuss.” (Id.) On August 2, 2023, Horn, HR Director Melissa Fegley, Butera,
Peterman, and Tracy Wheat (another Penske Operations Manager) met to discuss the plaintiff’s
request for an accommodation.
Peterman testified that his role in the meeting was to “provide operational background on
job duties.” (Peterman Dep. 66.) According to Peterman, he relayed to the group that the dynamic
driver position entailed “heavy touch,” as well as “pre-trip, post-trip, cranking landing gear,” and
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that “a lifting restriction of 20 pounds was not attainable in the dynamic position.” (Id.) According
to Peterman, aside from unloading tires, the twenty-pound lifting restriction would prevent a driver
from performing pre- and post-trip inspections, lifting herself in and out of the truck, potentially
climbing into the back of the trailer, and cranking landing gear. (Id. at 67.) Peterman considered
all of these tasks to be essential to the job of dynamic driver. (Id.) Horn’s notes from the meeting
indicate only that the group discussed that the “[l]ocation is unable to accommodate in the current
role because the associate’s job is touch freight and will require associate to lift more than 20lbs.”
(Doc. No. 51-4 at 78.)
Asked about how getting in and out of a truck qualified as “lifting,” Peterman explained
that, in his view, a person was required to reach overhead and “lift [her]self up inside the truck.
You are using your arms to pull yourself into the vehicle, arms and legs,” and he considered that
to be lifting. (Id.) Cranking the landing gear involved a “cranking motion,” but, he explained, “if
the landing gear is flush against the ground . . . and you have to either push or pull it depending on
if you’re cranking up or down,” that would involve “a lifting type motion.” (Id. at 68–69.) He
estimated that 55 to 60 percent of Trego’s (or any dynamic driver’s) loads require throwing tires.
(Id. at 69.)
3. 	The Plaintiff Is Placed on Leave
On 	August 	3, 	2023, 	Horn 	opened 	a 	two-week 	leave 	request 	for 	Trego 	for 	the
accommodation review period. On August 11, 2023, Horn notified the plaintiff by telephone call
and email that Penske could not accommodate her restrictions in her current position and that they
had not yet found an alternative position at her location. On August 15, 2023, FMLASource
notified the plaintiff that she was approved for leave from July 27, 2023 through August 31, 2023.
The type of leave in these communications was identified as under the ADA. On November 20,
2023, FMLASource clarified that the plaintiff’s leave was approved under the PWFA, rather than
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the ADA. (See Doc. No. 44 at 240.) Ultimately, Trego was provided leave as an accommodation
through her expected due date of March 12, 2024.
In the August 11, 2023 email to Trego, Horn asked if she wanted Penske to search for other
positions she might be able to perform. She followed up again on August 31, 2023. Trego never
filled out the Vacant Position Search form that Horn sent to her.
In November 2023, Trego began working as a package handler for FedEx.
4. 	Another Employee’s Leave Request
According to Penske, at the time the plaintiff requested an accommodation, Penske did not
have an open shuttle position available or ‘any available driving position that could accommodate
Plaintiff’s lifting restriction.” (Doc. No. 44 at 294, Fleming Decl. ¶ 14.) Penske also asserts that it
would not have been able to accommodate, and has never accommodated, any driver with a
twenty-pound lifting restriction. (Id. ¶¶ 21, 23.) Peterman testified that he was aware of one other
driver with a lifting restriction resulting from a workers’ compensation injury who had been
accommodated. (Peterman Dep. 55–56.) Peterman did not recall the exact restriction but he
“believe[d] it was 40 	pounds.” (Id. 	at 58.) 	This individual performed shuttle work for
approximately five months before being taken off work altogether due to his injury. (Id. at 58–59.)
5. 	The Plaintiff’s Termination
On August 4, 2023, FMLASource (as Penske’s agent) pre-approved unrequested leave for
Trego from March 12, 2024, until April 22, 2024, which included some period of maternity leave.
As set forth above, Trego gave birth on March 4, 2024. On April 8, 2024, FMLASource sent her
an email reminding her that, based on FMLASource’s records, she was approved for leave through
April 22, 2024 and was expected to return to work on her “first regularly scheduled work day
following this date.” (Doc. No 51-2 at 248.) However, the same email also notified her that, if she
needed to extend her leave, she should “please contact FMLASource.” (Id.) She was also expressly
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notified that, if she “intend[ed] to take additional time for bonding with [her] child immediately
following [her] Maternity Leave, [she was] not expected to return to work at this time and . . .
[would] receive an additional notice regarding the end date for that leave.” (Id.) Alternatively, she
was instructed to contact the Leave Team if she was ready to return to work. (Id.)
Trego did not respond to FMLASource or contact the Leave Team after receiving this
email. On April 18, 2024, Horn reached out to Trego to follow up, reminding her that she had been
approved for leave through April 22, 2024 and was expected to return to work on April 23, 2024,
unless she requested an extension of her leave. (Id. at 252.) Horn directed Trego to reach out to
FMLASource to request an extension if she wanted to extend her leave. (Id.) Trego responded to
this email the next day, as follows: “My employment was effectively terminated when I was forced
onto unpaid medical leave against my will in July 2023. I cannot return to a job I was terminated
from ten months ago.” (Id. at 254.)11
HR Manager Brittany Fleming, emailed and mailed Trego another notice on May 7, 2024,
asking her to review the attached “notice regarding [her] returning to work from her approved
leave of absence” and asking her to contact Fleming if she had any questions. (Id. at 257.) On May
15, 2024, Fleming followed up with a longer email to Trego, detailing Penske’s attempts to contact
her and “clarify[ing]” that, despite Trego’s telling Horn on April 18, 2024 that she had been
terminated in July 2023, Penske considered her to be a “current employee” who had been “placed
on an approved leave of absence” through April 22, 2024. (Id. at 256.) Fleming noted that Trego
had been given through May 13, 2024 to request an extension of her leave of absence but that, as
of May 15, she had neither returned to work nor requested additional leave. (Id.) Fleming notified
11 As stated above, unbeknownst to Penske, Trego had begun working as a package handler
for FedEx in November 2023. It is unclear from the record whether she was on maternity leave
from FedEx after giving birth.
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her that, despite her lack of response, her deadline for requesting to extend her leave would be
extended to May 22, 2024 but that, if Penske did not hear from her by that date, the company
would assume that she was “no longer interested in returning to Penske and have voluntarily ended
your employment with Penske.” (Id.)
Trego, again, did not respond to this notice. On June 5, 2024, Fleming sent a letter to Trego
informing her that, due to her failure to document her need for additional leave, Penske was “forced
to separate [her] from employment due to [her] lack of response.” (Id. at 257.) Her last date of
employment, from Penske’s perspective, was officially June 5, 2024. (Id.)
The plaintiff, by this time, had already initiated this lawsuit. (Doc. No. 1.)
B. 	Legal Claims
Penske asserts that the plaintiff has “produced no evidence, direct or circumstantial, to
support any of her chosen theories” and that Penske is entitled to summary judgment on all of her
claims, which it identifies as falling within three categories: (1) sex and disability discrimination
under Title VII, the THRA, and the ADA; (2) failure to accommodate under the ADA, TPWFA,
and PWFA; and (3) interference with rights under the FMLA and TMLA. Penske also asserts that
it is entitled to summary judgment on the plaintiff’s claim for back pay because she failed to
mitigate damages. Penske does not address the plaintiff’s retaliation claims, except indirectly in a
single footnote. (See Doc. No. 43 at 19 n. 9 (“To the extent Plaintiff alleges there is a connection
between her leave or separation and engaging in any protected activity, she is wrong, and Plaintiff
has not alleged any such facts.”).)
The court, starting with the easiest issue first, finds, as set forth below, that Penske is
entitled to summary judgment on the plaintiff’s claims premised upon interference with her rights
under the FMLA and TMLA and any discrimination or retaliation claims that are based on the
plaintiff’s termination as the actionable “adverse action.” Material factual disputes, however,
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preclude summary judgment on the plaintiff’s accommodation claims under the PWFA and the
TPWFA. In light of these factual disputes, the court declines to rule on Penske’s claims for
summary judgment on the plaintiff’s pregnancy/sex and disability discrimination claims. Because
Penske does not address the related retaliation claims, the court does not reach these either (aside
from those arising from the plaintiff’s termination). In addition, finding Penske’s request for
summary judgment on the issue of whether the plaintiff failed to mitigate her damages to be
premature, the court declines to address it.
1. 	FMLA and TMLA Claims
As discussed above, to prevail on her FMLA interference claim, Trego must prove that
(1) she was an eligible employee as defined under the FMLA; (2) her employer was
a covered 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 FMLA leave;
and (5) her employer denied FMLA benefits to which she was entitled.
Mullendore v. City of Belding, 872 F.3d 322, 327 (6th Cir. 2017) (quoting Novak v. MetroHealth
Med. Ctr., 503 F.3d 572, 577 (6th Cir. 2007). However, even when a plaintiff establishes a prima
facie case, “[i]nterference with an employee’s FMLA rights does not constitute a violation if the
employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the
challenged conduct.” Id. at 327 (quoting Grace v. USCAR, 521 F.3d 655, 670 (6th Cir. 2008)).
To be an “eligible” employee under the FMLA, the employee must have been employed
(i) for at least 12 months by the employer with respect to whom leave is requested
. . . ; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-
month period.
29 U.S.C. § 2611(2)(A). Here, it is undisputed that Trego had not been employed for a year when
she first went on leave, and her leave was not characterized as FMLA leave—nor did she request
leave under the FMLA or any other statute. As of January 2024, Trego had technically been
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employed by Penske for twelve months and, based on her calculations at least, had worked more
than 1,250 hours during the preceding twelve months. However, she remained on PWFA leave at
that point, not FMLA leave. She had not requested FMLA leave and quite apparently believes she
should not have been on leave at all during her pregnancy.
At the time she gave birth on March 4, 2024 and presumably might have wanted to request
maternity leave, Trego had technically been employed for more than one year but, by her own
calculations, had worked 1,227.5 hours—just under the required 1,250—during the preceding
twelve months, counting from March 2023 through February 2024. (See Trego Decl. Ex. 1, Doc.
No. 51-1 at 4 (providing a breakdown of “Total Time” in hours and “Drive Time” in hours for
each month from January 2023 through July 2023, when she was placed on leave).) In other words,
the plaintiff has not shown that, as of March 1, 2024, she had worked enough hours during the
preceding twelve months to be an eligible employee under the FMLA. Accordingly, she was not
entitled to FMLA leave. On this basis alone, Penske is entitled to summary judgment on the
plaintiff’s FMLA interference claim.
Regardless, even if she were considered to have been an eligible employee at the time she
needed maternity leave, Trego never gave Penske notice of her intention to take FMLA leave, and
she was never denied any leave to which she was entitled. In fact, she had been granted a full
thirteen weeks of maternity leave before Penske notified her that it was terminating her
employment.
To the extent the plaintiff is attempting to argue that her termination on June 5, 2024
qualifies as an adverse action in retaliation for her having taken FMLA leave, that attempt is
unavailing. First, again, Trego never requested FMLA leave, so her termination could not have
been in retaliation for exercising rights under the FMLA. Setting that aside, the evidence in the
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record establishes that Penske’s decision to terminate Trego was based on Trego’s failure to
respond to any of Penske’s repeated requests for confirmation regarding whether she wanted to
extend the maternity leave it had already preemptively accorded her under the TMLA or return to
work. The plaintiff has presented no countervailing evidence that suggests that Penske’s reason
for her termination was pretextual. Under the facts presented, no reasonable jury could find that
Penske interfered with the plaintiff’s FMLA leave rights or retaliated against her for taking FMLA
leave.
The plaintiff’s TMLA claims fail for largely the same reason. Although Penske does not
deny that the plaintiff was entitled to TMLA leave,12 the TMLA also requires an employee to give
advance notice of her intent to take leave, the “length of leave” anticipated, and the employee’s
“intention to return to full-time employment after leave,” in order to be guaranteed the right to be
“restored to [her] previous or similar position[].” Tenn. Code Ann. § 4-21-408(b)(1). The plaintiff
never requested any length of maternity leave and, despite being requested to do so multiple times,
never confirmed her intention to return to full-time employment with Penske following leave.
Under these circumstances, the plaintiff was not entitled under the TMLA to be returned to her
position, and Penske’s decision to terminate her based on her failure to respond to its requests for
such confirmation cannot be deemed retaliatory.
Penske is entitled to summary judgment on the plaintiff’s FMLA and TMLA interference
claims.
12 The TMLA defines as eligible those employees who have been “employed by the same
employer for at least twelve (12) consecutive months as full-time employees.” Tenn. Code Ann.
§ 4-21-408(a). By March 2024, Trego had been employed by Penske for more than one year, even
though she had been on leave for much of that time.
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2. 	Discrimination/Retaliation Claims Premised Upon the Plaintiff’s Termination
The plaintiff claims that her “termination” from employment was an adverse employment
action that supports her prima facie claims of discrimination and retaliation under the various
statutory schemes on which her claims are premised. For the reasons outlined above—namely, the
plaintiff’s failure to respond to Penske’s pleas that she inform it as to whether she was requesting
additional leave under any available federal or state statute or, alternatively, intended to return to
work—the court finds no reasonable jury could conclude that Penske’s stated reason for
terminating the plaintiff was pretext for retaliation or discrimination. Penske is entitled to summary
judgment on any of the plaintiff’s claims that depend on her termination as the adverse
employment action supporting the claim.
3. 	Failure to Accommodate Under the PWFA and TPWFA
The plaintiff denies that she brings an ADA failure-to-accommodate claim. (Doc. No. 56
at 4.) She asserts that she does bring claims for “discrimination for requesting and needing
accommodation under the PWFA and TPWFA” and “failure to engage in the interactive process”
and “forced leave” under the PWFA and TPWFA that Penske’s motion does not address (Id. at 9
n.8 and 4–5.)
Penske maintains that it had no need to address “fictitious” claims in the plaintiff’s pleading
and that “failure to provide a reasonable accommodation is the only type of discrimination
protected under the PWFA.” (Doc. No. 62 at 1 n.1.) The case it cites refers to the West Virginia
Pregnant Workers Fairness Act, see Figlar v. Simonton Windows & Doors, Inc., No. 1:23-CV-30,
2025 WL 941036, at *5 (N.D.W. Va. Mar. 27, 2025), but its point is well taken.
The PWFA makes it unlawful for a covered employer to fail to “make reasonable
accommodations” for pregnant workers or to require pregnant works to accept any accommodation
“other than any reasonable accommodation arrived at through the interactive process” 42 U.S.C.
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§ 2000gg-1.13 The EEOC, charged with promulgating implementing regulations and enforcing the
statute, construes the PWFA as “appl[ying] only to accommodations,” while other federal anti-
discrimination laws “make it illegal to fire or otherwise discriminate against employees . . . on the
basis of pregnancy.” See https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-
workers-fairness-act. The court construes the plaintiff’s discrimination claims under the PWFA
and the TPWFA as essentially a single claim based on the failure to provide a reasonable
accommodation.
The gist of the plaintiff’s claim is that Penske unreasonably forced her to take medical
leave 	as 	the 	only 	possible 	accommodation, 	despite 	the 	availability 	of 	other 	non-leave
accommodations. Penske argues that it is entitled to summary judgment on this claim because
Trego cannot show that she was “qualified” or that Penske failed to offer her a reasonable
accommodation.
More specifically, Penske asserts that Trego was not a “qualified individual” under the
PWFA because “her inability to perform the essential functions of her job—namely unloading tires
to Penske’s customers and conducting federally-mandated safety inspections—could not be
reasonably accommodated, even temporarily.” (Doc. No. 43 at 25.)14 The court, in short, is not
persuaded. Under both the ADA and the PWFA, temporary medical leave itself may, in fact, be a
reasonable accommodation for a pregnant employee unable to perform her essential job duties,15
13 The PWFA also prohibits retaliation against a pregnant worker for requesting a
pregnancy-related accommodation. 42 U.S.C. § 2000gg-1. The plaintiff’s retaliation claims not
based on her termination are addressed below.
14 The issue of whether Penske failed to accommodate the plaintiff’s need for additional
water and restroom breaks is simply a non-issue. The plaintiff’s focus on it does nothing to further
her substantive claims.
15 See King v. Steward Trumbull Mem’l Hosp., Inc., 30 F.4th 551, 561 (6th Cir. 2022)
(recognizing that “[l]eave as a reasonable accommodation is . . . consistent with [the ADA’s]
statutory purpose because it enables the employee to return to work following the period of leave
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as Penske itself implicitly recognized by placing the plaintiff on leave as an accommodation. In
addition, the PWFA recognizes that a worker may remain “qualified” even if unable to perform an
essential function of her job, if the inability is “temporary” or “can be reasonably accommodated.”
42 U.S.C. § 2000gg(6). In other words, a temporary inability to perform an essential job function
does not necessarily disqualify a pregnant employee from being “qualified.”
Moreover, irrespective of whether unloading tires was one of the essential functions of the
plaintiff’s job, the PWFA appears to impose broader obligations on employers to reach a
reasonable accommodation, through the interactive process, than the ADA does. Under the
regulations (which, again, had not gone into effect in July 2023), an employer may not “require[e]
a qualified employee to take leave if another reasonable accommodation can be provided.” 29
C.F.R. § 1636.1(b)(4). Likewise, an employer may not require an employee to take leave “if
another accommodation can be provided . . . that does not result in an undue hardship for the
covered entity.” Id. § 1636.4(d)(1). Under the PWFA, reasonable accommodations may include
the “[t]emporary suspension of essential function(s) and/or modifications or adjustments that
permit the temporary suspension of essential function(s).” Id. § 1636.3(h)(iv). In addition,
reasonable accommodations include
[j]ob restructuring; part-time or modified work schedules; . . . acquisition or
modification of . . . devices, including devices that assist with lifting or carrying for
jobs that involve lifting or carrying; . . . ; . . . assignment to light duty or modified
work; . . . and other similar accommodations for employees with known limitations
under the PWFA.
29 C.F.R. § 1636.3(i)(2).
requested as an accommodation—i.e., it enables the employee to perform the essential function of
attendance”).
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The term “undue hardship” under the PWFA has the same meaning as it does under the
ADA. See 42 U.S.C. § 2000gg(7) (incorporating by reference the definition provide in 42 U.S.C.
§ 12111). The ADA defines the term as “an action requiring significant difficulty or expense”
when considered in light of the following factors:
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the
provision of the reasonable accommodation; the number of persons employed at
such facility; the effect on expenses and resources, or the impact otherwise of such
accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the
business of a covered entity with respect to the number of its employees; the
number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the
composition, structure, and functions of the workforce of such 	entity; the
geographic separateness, administrative, or fiscal relationship of the facility or
facilities in question to the covered entity.
42 U.S.C. § 12111(10); see also 29 C.F.R. § 1636.3(j).
In this case, the evidence introduced by both parties indicates that Penske, on its own and
without input from the plaintiff, identified the essential job duties of the dynamic driver position
and unilaterally decided that the plaintiff could not perform those functions with a twenty-pound
lifting restriction. It maintains that all of its truck-driving jobs require the ability to lift the hood of
the truck in order to perform a pre-trip inspection, but no one at Penske asked the plaintiff about
her ability to perform that task or the other ancillary tasks that Penske unilaterally decided required
lifting more than twenty pounds. It refers to its review of an ergonomics study, but it has not
presented actual evidence that this study pertained to the trucks the plaintiff was hired to drive.
Penske claims that restructuring the plaintiff’s job to eliminate the freight-unloading
requirement would have posed an undue hardship, but there is no evidence that it considered, for
instance, allowing the plaintiff to work part-time, assigning her only those jobs in a given week
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that involved transporting TBR tires that are unloaded mechanically rather than manually, allowing
her to fill in on an as-needed basis on routes that did not require manually unloading tires, or
allowing her to pay a “lumper fee”—that is, to hire someone to unload for her. Finally, its
consideration of “undue hardship” is cursory at best, made without reference to any of the factors
identified in 42 U.S.C. § 12111(10).
The court is cognizant that Penske did not have the benefit or any caselaw interpreting the
PWFA, which went into effect weeks before the plaintiff announced her pregnancy-related job
restrictions, and the implementing regulations did not take effect until after this lawsuit was filed.
Penske, however, does not raise an argument regarding the timing of the passage of the Act and
regulations. It simply argues that leave was the only reasonable accommodation it could have
offered. The court nonetheless finds that there is a question of fact as to whether, under the PWFA,
Penske had an obligation to engage in the interactive process with Trego in an attempt to explore
with her, and attempt to identify, other possible accommodations that would not have required her
to take complete medical leave for eight months.
Penske, in short, is not entitled to summary judgment on the plaintiff’s PWFA and TPWFA
claims based on failure to reasonably accommodate, failure to engage in the interactive process,
and requiring the plaintiff to take leave.
Penske does not move for summary judgment on the plaintiff’s PWFA/TPWFA retaliation
claim. That claim appears to overlap almost entirely with the failure to accommodate claim, as a
result of which the defendant has not shown that it is entitled to summary judgment on this claim
either.
4. 	Disability and Sex Discrimination and Retaliation Claims and Damages
Penske argues, in a nutshell, that it is entitled to summary judgment on the plaintiff’s
disability and sex discrimination claims because the plaintiff cannot establish any of the elements
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of a prima facie case to support these claims. (Doc. No. 43 at 14–20.) The standards under the
ADA and Title VII (and the THRA) arguably differ somewhat from the PWFA and TPWFA
standards that apply to the plaintiff’s failure to accommodate claims. However, all of these legal
claims and the facts supporting them, and the relief available should the plaintiff prove them,
overlap sufficiently that it would be a waste of judicial time and resources for the court to address
them. Granting summary judgment to Penske, that is, would not appreciably shorten the trial or
affect the parties’ trial preparation. Given that the court has already determined that the plaintiff’s
PWFA and TPWFA claims must be resolved by a jury, the court declines to consider whether
Penske is entitled to summary judgment on these related claims. Penske has not directly addressed
the plaintiff’s retaliation claims, and the court denies summary judgment on those claims as well
(except insofar as the retaliation claims arise under the FMLA or TMLA, as discussed above).
The court likewise declines to address Penske’s claim that it is entitled to summary
judgment on the plaintiff’s back pay damages claim based on a failure to mitigate damages. Failure
to mitigate is an affirmative defense on which Penske bears the burden of proof, once the plaintiff
proves that she is otherwise entitled to back pay. See Nat’l Lab. Rels. Bd. v. Bannum Place of
Saginaw, LLC, 97 F.4th 351, 363 (6th Cir. 2024). As it is unclear at this juncture whether the
plaintiff is otherwise entitled to damages in the form of back pay, the court finds that it is premature
to consider a failure to mitigate.16
16 The dismissal of the plaintiff’s claims arising from her termination in June 2024 may
obviate her claim for back pay.
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IV. 	CONCLUSION
As set forth above, the plaintiff’s Motion for Summary Judgment will be denied in its
entirety. Penske’s Motion for Summary Judgment 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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