Nance v. Goodyear Tire & Rubber Co.

COLE, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 558-64), delivered a separate opinion concurring in the judgment.

OPINION

Plaintiff-Appellant Marcia B. Nance appeals the district court’s grant of summary judgment to Defendant-Appellee Goodyear Tire and Rubber Co. (“Goodyear”) on her claims alleging violations of the Americans with Disabilities Act, the Tennessee Handicap Act, and the Family and Medical Leave Act; retaliatory discharge, including violations of the Tennessee “whistleblower” law; wrongful and constructive discharge through alleged retaliatory conduct; outrageous conduct and intentional infliction of emotional distress in violation of Tennessee common law; and breach of a common law duty of good faith and fair dealing. For the following reasons, we AFFIRM the judgment of the district court.

I. BACKGROUND

A.

Goodyear hired Nance on June 22, 1998, as a bargaining-unit employee in its Union City, Tennessee tire-manufacturing plant. Nance was initially employed in a bead-builder position, which requires the assembly of steel wires called “beads” that attach a tire to the wheel rim.

On November 15, 2000, Nance successfully bid under the collective bargaining agreement (“CBA”) for a roll-changer position, which required her to load rubber strips onto a splicing machine. While working in that capacity, Nance injured her neck and shoulder and was diagnosed with cervical radiculopathy. On May 15, 2002, Nance’s physician, Dr. William H. Knight, performed bone-fusion surgery on her cervical vertebrae by removing a bone from her hip and fusing it with two of the vertebrae in her neck. As a result of her injury, Nance took a medical leave of absence for approximately a year, from May 2002, the time of her surgery, until March 2003.

In anticipation of Nance’s eventual return to work in 2003, Dr. Knight and a workers’ ■ compensation representative from Goodyear, Rebecca Duke, requested a functional capacity evaluation (“FCE”) for Nance primarily to determine whether she could resume the roll-changer position she held before her injury. For several hours over a two-day period (February 3-4, 2003), Jacqueline Gilliam, a Goodyear physical therapist, performed a complete examination of Nance. The tests Gilliam conducted showed that Nance could lift a maximum of thirty pounds from the floor, twenty pounds overhead, and thirty pounds horizontally; that she could carry a maximum of twenty pounds in her right hand, twenty pounds in her left hand, and twenty-five pounds in both hands; that she could generate a forty-six to fifty-four pound “push-pull force;” and that she had a grip strength of seventy-three pounds in the right hand and seventy-seven pounds in the left hand. According to Gilliam, this meant Nance could tolerate “positional activities such as elevated work, forward bending, sitting and standing on a frequent basis, as well as rotational sitting ... rota*544tion in standing, crawling, kneeling, crouching, repetitive squatting, sitting and standing, walking, stair climbing, step ladder climbing, balancing, and coordination.” (Joint Appendix (“JA”) 512.) However, Nance’s injury limited “[vjertical ladder climbing and material handling abilities.” (JA 266.) Officially, she was placed in the “Light and Medium” Physical Demand Category because she was unable to lift weight continuously.

Comparing the physical demands of the roll-changer position and the FCE results, Gilliam concluded that Nance could not physically perform her duties in that position. Goodyear therefore disqualified Nance as a roll changer. After Nance’s FCE, Gilliam searched all bargaining-unit jobs in the Goodyear plant and reported that none matched Nance’s physical abilities. Following this report, Nance met several times with Union and Goodyear representatives to discuss further efforts to identify a position which she could perform. Nance and the various representatives reviewed lists of jobs in the plant, considering Nance’s limits and each job’s physical requirements. During these ongoing accommodation efforts, Gilliam learned that Nance was qualified and eligible to work as a stock trucker, which would require her to drive fork-lift trucks to transport materials within the plant. By letter of May 22, 2003, Gilliam opined to Human Resources representative Kathy Hill that Nance could perform the duties of that job.

Nance returned to work as a stock trucker on June 16, 2003. After a few weeks, Nance removed herself from that position because she claimed that Goodyear did not accommodate her physical limitations in a number of areas, and that vibrations from the fork-lift caused pain in her neck and shoulder. According to Nance, Goodyear failed to provide her with a strong arm-lift support to help her lift the side panel off the fork-lift to change the battery, a radio to communicate with her co-workers, or assistance from her coworkers to help change the battery. Her disqualification as a stock trucker became official at a meeting on October 3, 2003, at which Nance, a union steward, and two Goodyear representatives were present. Nance did not file a grievance over her disqualification, and she remained off work on another period of medical leave related to a hysterectomy performed on July 23, 2003.

On October 28, 2003, Gilliam re-analyzed the job tasks associated with the “Ban-bury” mixer machine-cleaner. Gilliam originally deemed Nance medically incapable of performing this job, but upon a second review, she concluded that Nance could perform the job if Goodyear implemented certain accommodations. The Banbury mixers produce the rubber compounds used in tires and, during their operation, discharge a steady trickle of oil down a trough and into a five-gallon bucket. Machine cleaners in the Banbury area are normally responsible for keeping the premises clean and free of debris. One of the responsibilities of a machine cleaner is to empty the bucket as needed, usually by carrying the bucket containing the discharged oil down an aisle and pouring it into a drum. The position is an established bargaining-unit position held at any given time by approximately eleven to fifteen Goodyear employees, working in three shifts over a twenty-four hour period. To accommodate Nance’s lifting restrictions, Gilliam proposed adjusting some of the machine-cleaner duties and suggested the creation of special tools like a hand-held scoop, which Nance could use to remove oil from the bucket incrementally rather than waiting for it to become completely full. Gilliam also recommended that Goodyear give Nance a smaller scrap*545er than those normally used to clean “fíne baskets,” containers that must be cleaned once every shift. Following Gilliam’s recommendation, on November 3, 2003, Goodyear placed Nance in the machine-cleaner position. She was given a ladle consisting of a coffee can welded to a rod to remove oil in smaller increments and two teflon-coated pans to scoop out sludge from the oil buckets as needed. Goodyear also added a hook onto the side of the pans to eliminate the force necessary for emptying them.

Nance worked as a machine cleaner for four days, last reporting to work on November 7, 2003. According to Nance, she left the job because Goodyear did not permit her to perform the other parts of the machine-cleaner job, and instead limited her to emptying the oil buckets; because Goodyear refused to replace a safety gate and provide adequate lighting; and because she found the job mentally difficult. She also claimed that the position was neither meaningful nor safe.

After Nance left work, Dr. Louis M. Wells, her psychiatrist, diagnosed her on December 15, 2003, with adjustment disorder with mixed emotional features, panic disorder, and agoraphobia, an anxiety disorder involving the fear of certain settings that may present unexpected challenges or demands. As a result of his diagnosis, Dr. Wells wrote a note requesting that Nance be excused from work through January 6, 2004, when she was to be reevaluated. Shortly thereafter, Hill sent Nance a letter advising her that Goodyear was placing her on a medical leave of absence for her stated inability to work. Hill’s letter reminded Nance that she was “responsible for reporting off to [her] resident department while [she was] on medical leave of absence.”1 (JA 284.)

In the midst of all this, on January 9, 2004, Nance, her attorney Timothy Boxx, Goodyear’s workers’ compensation manager Jane Holland, and Goodyear attorney James Glasgow, Jr., met in an attempt to settle Nance’s workers’ compensation claims from her 2002 injury. In a discussion after the conference, Boxx contends that he told Holland that Nance would not return to work, though Nance claims that Boxx stated only that she would not return to the machine-cleaner position.

After January 9, 2004, Nance did not return to work, nor did she call in to report her absences. A few weeks later, on January 29 and 30, 2004, Lee McClure, then Goodyear’s business center auditor for the plant’s Banbury area, attempted to reach her at her home by telephone. The first time he left a voice message which Nance said she did not receive. On January 30, Nance picked up, but she told McClure that she “could not talk to him ... [a]nd [ ] hung up the phone.” (JA 224.) Although Nance admits that she made no effort to call McClure back, she believed that Goodyear would send her a certified letter containing any information the company needed to convey. However, *546Goodyear viewed this interaction differently. Due to failed attempts to contact Nance, and her continuing absences, Goodyear sent her a letter dated February 19, 2004, and a Separation Notice dated February 23, 2004, advising Nance that she was being discharged from the company pursuant to Article X of the CBA. Article X states, in relevant part:

An employee who is absent for seven (7) scheduled work days or more, without reporting to the Employer, shall be considered as having resigned without notice and his seniority will terminate.

After receiving the termination notices, Nance called Union and Goodyear representatives on March 2, 2004, to protest Goodyear’s conclusion that she had “resigned without notice.” On March 3, 2004, the Union filed a grievance disputing her termination, which eventually culminated in arbitration.

B.

On June 16, 2004, Stanley H. Sergent presided as the arbitrator over a full evi-dentiary hearing. Nance was represented at the hearing by four Union representatives, and five witnesses testified under oath, including Nance and her attorney, Boxx. Two weeks after the hearing, Ser-gent entered an Opinion and Award holding that Goodyear had properly treated Nance as having “resigned without notice” under Article X of the CBA. He found that Nance had not justified her failure to comply with the report-off requirement of Article X and concluded that “since [Goodyear] properly considered the grievant as having resigned without notice her grievance is without merit and must be denied.” (JA 415.)

Nance then filed the present action on November 22, 2004, alleging discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Tennessee Handicap Act (“THA”), Tenn.Code Ann. § 8-50-103; violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; retaliatory discharge, including violations of the Tennessee “whistleblower” law, Tenn.Code Ann. § 50-1-304; wrongful and constructive discharge through alleged retaliatory conduct; outrageous conduct and intentional infliction of emotional distress in violation of Tennessee common law; and breach of a common law duty of good faith and fair dealing.

After Goodyear moved for summary judgment, the district court granted all of Goodyear’s claims, finding itself “bound by the arbitrator’s decision that, pursuant to the terms of the CBA, Plaintiff resigned without notice from her employment instead of being terminated,” and concluding that Nance was “barred from re-litigating the issue of her alleged wrongful discharge.” (JA 1187.) The district court also found the remaining state law claims to be without merit. After the district court entered an order denying Nance’s motion to alter or amend the judgment, Nance filed this appeal.

II. STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. Miller v. Admin. Office of the Courts, 448 F.3d 887, 893 (6th Cir.2006). Summary judgment for Goodyear is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). However, Goodyear bears the burden of proving that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 *547S.Ct. 2548, 91 L.Ed.2d 265 (1986). The ultimate inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. ADA CLAIMS

Nance’s disability discrimination claims present two distinct inquiries. First, as a threshold matter, did the arbitration regarding whether Nance violated the terms of the CBA preclude her from re-litigating that issue in a related suit to vindicate her statutory rights under the ADA? If it did not, and we are allowed to consider the question, is Goodyear nevertheless entitled to summary judgment on the merits?

A.

Nance contends that the district court erred in finding that her ADA claims were barred by the arbitrator’s conclusion that she had “resigned without notice,” and points to Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), for the proposition that the arbitration of related contractual claims under a CBA does not bar de novo review of statutory claims in federal court. We agree. Generally, “once an issue has been fully litigated and necessarily determined by an adjudicatory body, a party and its privies are precluded from raising that issue in a subsequent proceeding.” Central Transp., Inc. v. Four Phase Sys., Inc., 936 F.2d 256, 260 (6th Cir.1991). However, when an employee like Nance submits her grievance to arbitration, she is seeking only to vindicate her contractual rights under a collective bargaining agreement. Such an employee is not barred from bringing a subsequent statutory claim against her employer based on the same conduct, because arbitration over contractual disputes under a collective bargaining agreement is of a “distinctly separate nature” than “independent statutory rights accorded by Congress.” Alexander, 415 U.S. at 49-50, 94 S.Ct. 1011. Not only are the two forums independent, but they are in fact, according to the Court, “complementary since consideration of the claim by both forums may promote the policies underlying each.” Id. at 50-51, 94 S.Ct. 1011. In sum, an employee should be able to “pursue fully both his remedy under the grievance-arbitration clause of a collective bargaining agreement and his cause of action under Title VII,” and a “federal court should consider the employee’s claim de novo.” Id. at 59-60, 94 S.Ct. 1011. See also Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998) (holding that a collective bargaining agreement’s general arbitration clause did not encompass an alleged violation of the ADA); McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984) (applying Alexander to § 1983 claims); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (same for the Fair Labor Standards Act).2

*548Goodyear argues, and the district court agreed, that Alexander and its progeny are distinguishable because Nance only arbitrated the question of whether she had resigned without notice as defined by Article X of the CBA. To be sure, Alexander differs from the instant case in that Alexander submitted both his discrimination and contract claims to arbitration whereas Nance’s grievance involves only a contractual claim. The question, then, is whether a prior arbitration over a contractual issue precludes (or “collaterally estops”) a plaintiff from re-litigating that same issue in federal court. We think not.

In Alexander; the Supreme Court held “that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is disposi-tive of a statutory claim under Title VII.” 415 U.S. at 46 n. 6, 94 S.Ct. 1011. Like Nance, Alexander was a former African-American employee who filed both a claim of wrongful discharge under his collective bargaining agreement’s grievance provisions and a statutory race-discrimination claim in federal court. While Alexander’s Title VII claim was pending, an arbitrator ruled that he had been discharged for “just cause” because he produced too many defective or unusable parts, though the arbitrator made no express reference to his claim of racial discrimination. The district court determined that the arbitrator’s decision precluded the court from reconsidering the issue, and granted summary judgment in favor of the defendants. The Tenth Circuit affirmed. The Supreme Court then reversed and concluded that courts should not defer to a prior arbitration even if the arbitrator has the full authority to rule on the claim and the court is presented with the same question as the arbitrator.

We find it difficult to distinguish this case from Alexander. In Alexander, the Court considered whether an adverse arbitration decision finding that Alexander was fired for “just cause” had a preclusive effect, and here, we consider whether an adverse arbitration decision finding that Nance “resigned without notice” has a pre-clusive effect. Both cases involve the adjudication of statutorily guaranteed rights, an inquiry that Congress reposed in federal courts.

This is also not the first time this Circuit has confronted and answered this question. In Becton v. Detroit Terminal of Consol. Freightways, 687 F.2d 140, 141-42 (6th Cir.1982), the plaintiff, a discharged employee, appealed the district court’s conclusion that a prior arbitration on whether the employee had been fired for “just cause” precluded a federal court from considering evidence on the underlying racial-discrimination claim. We concluded that the district court engaged in “an impractical and excessively narrow application of [Alexander ],” id. at 142, because “[tjhere is no realistic way to sever the discharge from the claim of discrimination,” id. “Inasmuch as ‘just cause’ or similar contract questions are an integral part of many discrimination claims, the better rule avoids judicial efforts to separate and classify evidence offered by the plaintiff under the heading of ‘discrimination’ or ‘just cause.’ ” Id.

The key point in this line of cases is clear: While the expertise of arbitrators lies in the application of facts to the terms of an employee’s contract or collective bargaining agreement, the expertise of federal courts lies in the application of facts to anti-discrimination statutes. In other words, because “the specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land,” Alexander, 415 U.S. at 57, 94 S.Ct. 1011, whether Nance resigned without notice might mean one thing under Good*549year’s CBA, but it might very well mean an entirely different thing for the purposes of an “adverse employment action” under the ADA. Thus, the legal and factual issues raised in Nance’s ADA claim are beyond the competence of the ordinary arbitrator whose primary expertise concerns “the demands and norms of industrial relations.” Id.

But even assuming that the resignation versus termination question is a purely contractual issue, and requires no substantive expertise from federal courts, the importance of strict fact-finding procedures in protecting the rights guaranteed under the ADA is another convincing reason for this rule. Arbitration does not carry with it the right to a trial by jury, arbitrators are not generally required to give the reasons for their decisions, the record of arbitral proceedings generally is not as complete as a trial record, judicial review of arbitration decisions is more limited than review of district court proceedings, the Federal Rules of Evidence and of Civil Procedure do not apply, and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted. Id. at 57-58, 94 S.Ct. 1011. When an employee such as Nance seeks to vindicate her federal rights to be free from discrimination, we must review all factual issues — including contractual ones — de novo in order to ensure that “the interests of the individual employee [are not] subordinated to the collective interests of all employees in the bargaining unit.” Id. at 58 n. 19, 94 S.Ct. 1011; see also Barrentine, 450 U.S. at 742-43, 101 S.Ct. 1437. In short, where suits are tried is often as important as the substantive rights sought to be vindicated. Thus, whether the arbitration is “similar to, or duplicative of, the substantive rights secured by [the ADA],” Alexander, 415 U.S. at 54, 94 S.Ct. 1011, if a plaintiff does not expressly waive her right to bring claims in federal court, a prior arbitration does not preclude us from reconsidering all factual issues underlying a statutory claim.

One final point: although we review Nance’s ADA claim de novo, we do not read Alexander as precluding courts from considering a prior arbitration as a factor in their calculus. Indeed, a district court may admit an arbitrator’s decision as evidence based on “the degree of procedural fairness in the arbitral forum, adequacy of the record with respect to the issue of discrimination, and the special competence of particular arbitrators,” or when “the issue is solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record.” Id. at 60 n. 21, 94 S.Ct. 1011.3

B.

Before moving on to consider the merits of Nance’s ADA claim, we pause to address the arguments set forth in the concurring opinion.

*550First, the concurrence disputes the proposition that Supreme Court precedent forbids us from applying collateral estop-pel to issues decided by an arbitrator while interpreting a collective bargaining agreement. The concurrence accuses us of overgeneralizing and mischaracterizing the Supreme Court’s rulings. To the contrary, all we have done is follow exactly what the Supreme Court has said. In Alexander, the Court noted that “[t]he policy reasons for rejecting the doctrines of election of remedies and waiver in the context of Title VII are equally applicable to the doctrines of res judicata and collateral estoppel.” 415 U.S. at 49 n. 10, 94 S.Ct. 1011 (emphasis added). In McDonald, the Court reiterated and extended its reasoning in Alexander and Barrentine to the § 1983 context. The McDonald Court held “that in a § 1983 action, a federal court should not afford res judicata or collateral-estoppel to effect an award in an arbitration proceeding brought pursuant to the terms of a collective-bargaining agreement.” 466 U.S. at 292, 104 S.Ct. 1799 (emphasis added). Our sister circuits have read the Supreme Court’s language just as we have, presumably because it is clear and unambiguous. See, e.g., Wiedemann v. City of Oklahoma City, 76 Fed.Appx. 931, 932 (10th Cir.2003) (declining to give preclusive effect to an arbitrator’s determination that the defendant failed to proffer a legitimate, non-discriminatory reason for terminating plaintiffs, and citing McDonald in support); Grappe v. Kansas City S. Ry. Co., 71 Fed.Appx. 302, 303 (5th Cir.2003) (“[BJecause different policies underlie the proceedings before the Board and the Title VII action before the court, collateral estoppel is not available.”); Williams v. Perry, No. 00-7366, 2000 WL 1506086, at *5-7 (2d Cir. Oct.6, 2000) (declining to give preclusive effect to an arbitrator’s finding that the plaintiff was discharged for “just cause” on the basis of McDonald); Wilmington v. J.I. Case Co., 793 F.2d 909, 918 (8th Cir.1986) (holding that an arbitrator’s ruling that the plaintiff had been fired for just cause for falsifying labor cards did not have pre-clusive effect on a subsequently filed § 1981 claim); Gonzalez v. S. Pacific Transp. Co., 773 F.2d 637, 643 (5th Cir.1985) (“Even if the same claim and factual allegations were determined by binding arbitration, the plaintiff is entitled to de novo review in a federal court and doctrines of res judicata or collateral estoppel are inapplicable.”); Aleem v. Gen. Felt Indus., Inc., 661 F.2d 135, 137 (9th Cir.1981) (“Collateral estoppel is equally inapplicable, for Congress in enacting Title VII made it clear that prior administrative adjudications were not to prevent de novo review of Title VII claims in federal court. The statutory scheme warrants an exception to the usual rules of res judicata and collateral estoppel.”); Lyght v. Ford Motor Co., 643 F.2d 435, 438 (6th Cir.1981) (“It is settled law that the doctrines of res judica-ta, collateral estoppel and election of remedies normally do not apply in Title VII actions.”).

The concurrence is, of course, free to make what it will of Supreme Court precedent, but we think it prudent to follow that precedent, just as our sister circuits have, until the Court commands otherwise. United States v. Hill, 440 F.3d 292, 299 n. 3 (6th Cir.2006) (stating that the lower federal courts must apply Supreme Court precedent, even if they have doubts about its continuing viability, because it is the prerogative of the Supreme Court alone to reverse its decisions). We also cannot help but to notice that even though the concurrence insists that the Supreme Court has not foreclosed the application of collateral estoppel to issues decided by an arbitrator in a subsequent civil-rights action, the concurrence does not cite a single *551decision from any court doing just that. The reason for this is simple: there are none.

Even if there were some reason to assume that the Supreme Court did not mean what it said in Alexander and McDonald, we are not persuaded by the concurrence’s arguments in support of its position. The concurrence contends that if we fail to defer to an arbitrator’s interpretation of a collective bargaining agreement, we risk unleashing the evil of collateral attacks on prior judgments, and the inconsistent rulings and advisory opinions that such collateral attacks could spawn. To illustrate, the concurrence asks us to imagine what would happen if Nance appealed the arbitral decision against her, we affirmed, and Nance then filed her ADA action. The concurrence says that in such a situation, our failure to give preclusive effect to the arbitrator’s finding that Nance resigned without notice would effectively authorize a collateral attack on our prior (imaginary) decision affirming the arbitral decision. This, in turn, says the concurrence, would render our prior deci-. sion merely advisory.

We think our concurring colleague is unnecessarily alarmed. To believe that our opinion today will license collateral attacks as the concurrence fears, one would have to believe that the question presented on appeal from an arbitrator’s decision interpreting a collective bargaining agreement, and the question presented on appeal from a district court’s decision adjudicating a civil-rights claim, are identical. But as Alexander and its progeny have explained in no uncertain terms, they are not. Indeed, claims predicated on a collective bargaining agreement and claims predicated on federal statutes “have legally independent origins,” Alexander, 415 U.S. at 52, 94 S.Ct. 1011, and the “separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence,” id. at 50, 94 S.Ct. 1011. The point is that the two claims are distinct and our review of them is distinct. In an appeal from an arbitrator’s decision interpreting a collective bargaining agreement, our review is confined to ascertaining whether the arbitrator erred. In doing so, we apply the highly deferential standard of Michigan Family Resources and uphold the arbitrator’s decision so long as she was “arguably construing or applying the contract” and was not disqualified by fraud or a conflict of interest. Michigan Family Res., Inc. v. Serv. Employees Int’l Union, 475 F.3d 746, 753 (6th Cir.2007). On the other hand, in a civil-rights action in which the district court has granted summary judgment, our review is plenary. We consider de novo the district court’s application of the law to the facts. See, e.g., DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004).

Thus, the concurrence’s argument confuses apples with oranges. There can be no risk of collateral attacks or inconsistent judgments because the two judgments at issue — the one involving the correctness of the arbitrator’s decision interpreting the collective-bargaining agreement and the one involving the correctness of the district court’s decision granting or denying relief on the employee’s civil-rights claims — have nothing to do with one another. Applied to the facts here, were we to decide that Nance was indeed “terminated” for purposes of her ADA claim, that conclusion would in no way invalidate an earlier (but non-existent in this case) decision of this Court affirming the arbitrator’s finding that she was not terminated within the meaning of the collective-bargaining agreement. This is true because the questions presented in each appeal, and the *552legal standards by which they are evaluated, are completely different.

This brings us to our final, and most important, disagreement with our concurring colleague. We take the concurring opinion at its word when it says that its purpose in writing separately is to present an adjudicative approach that “affords all of our precedent its due respect.” Concurring Op. at 561. Rather than accomplishing this worthy goal, however, we think that the concurrence’s preferred approach elevates the importance of our decision in Michigan Family Resources and gives short-shrift to more pertinent Supreme Court precedent.4

As described above, Michigan Family Resources sets the standard for reviewing arbitral decisions enforcing collective bargaining agreements, and it sets a very deferential standard at that. We are bound to affirm an arbitrator’s decision so long as we conclude that she was “arguably construing or applying the contract.” 475 F.3d at 753. Our affirmance is required even when we believe that “the arbitrator made ‘serious,’ ‘improvident’ or ‘silly’ errors in resolving the merits of the dispute.” Id. In crafting the “arguably construing” inquiry, we acknowledged that this standard would allow a court to vacate “only the most egregious [arbitral] awards.” Id.

The concurring opinion would have us import the Michigan Family Resources test into our consideration of federal civil-rights claims, an approach that, by our count, has been adopted by no other court. Here, even if we concluded that the arbitrator’s finding that Nance was not terminated within the meaning of the CBA was “improvident,” “silly,” or just plain wrong, we would nonetheless be compelled to defer to it (assuming the “arguably construing” standard was satisfied). This in turn would put an end to Nance’s ADA claim.

The problem with this reasoning is that it turns Supreme Court precedent on its head. The whole point of Alexander and its progeny is to ensure that the federal courts’ ability to decide federal civil-rights claims — even those that grow out of the same facts as the claims submitted to labor arbitration proceedings — are not controlled or handicapped by what happens in the arbitral forum. Rather than observing this strict separation, and protecting the authority of the federal courts, our concurring colleague would intertwine the two proceedings, making federal judges’ consideration of the merits of civil-rights claims dependent upon an arbitrator’s interpretation of the collective bargaining agreement.

The danger of this approach to the enforcement of federal civil-rights laws has already been contemplated by the Supreme Court. The Court has repeatedly emphasized that an arbitrator’s duty is to effectuate the intent of the parties by interpreting the collective bargaining agreement, and that she has no other authority outside of the contract. See Barrentine, 450 U.S. at 744, 101 S.Ct. 1437. Thus, even if a proper interpretation of the contract would contradict federal law, the arbitrator must give effect to the contract. See id. (An arbitrator “has no general authority to invoke public laws that conflict with the bargain between the parties.”) (citing Alexander, 415 U.S. at 53, 94 S.Ct. 1011). The result is that an arbitrator “may issue a ruling that is inimical to the *553public policies underlying [federal law], thus depriving an employee of protected statutory rights.” Id.

The concurrence disregards this possibility, and in so doing fails to give Alexander and its progeny their “due respect.” By endorsing a rule that requires us to give preclusive effect to an arbitrator’s contractual interpretations that satisfy the Michigan Family Resources standard, our concurring colleague is in effect saying that even if the arbitrator’s conclusion is opposite to the conclusion we would reach in presiding over a federal civil-rights action or, worse yet, even if the arbitrator’s conclusion is contrary to federal law, we are nonetheless bound to defer to it. We do not share the concurrence’s peculiar reading of precedent, nor do we share its anemic view of our responsibility as federal judges to independently interpret and apply federal statutes.

C.

Although the district court incorrectly concluded that Nance was barred from bringing her ADA and related claims in federal court and declined to address the merits of her ADA claim, our review of the record makes clear that summary judgment for Goodyear is still appropriate. Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 545 n. 2 (6th Cir.1999) (holding that this Court may affirm the judgment of the district court on any grounds supported by the record, even if they are different from those relied upon by the district court).

The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).5 Nance makes three distinct claims of discrimination: (1) she was terminated because of her disability; (2) she was constructively discharged because of her disability; and (3) she was not given reasonable accommodations as required by the ADA. Each will be considered in turn.

1.

To prevail in a disability discrimination case, a plaintiff must show: (1) she was “disabled” under the ADA; (2) she was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; (3) she suffered an adverse employment action; (4) the employer knew or had reason to know of the plaintiffs disability; and (5) a nondisabled person replaced her. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir.1996). Nance attempts to meet this burden by presenting inferential evidence of discrimination, requiring us to apply the familiar McDonnell Douglas burden-shifting framework. ■ Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. If the defendant does so, the plaintiff must identify evidence from which a reasonable jury could conclude that the proffered reason is actually a pretext for unlawful discrimination. Id. Although the burdens of production shift, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 *554U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). “On a motion for summary judgment, [this Court] considers whether there is sufficient evidence to create a genuine dispute at each stage of the McDonnell Douglas inquiry.” Cline v. Catholic Diocese of Toledo, 206 F.3d 651, 661 (6th Cir.2000).

Nance cannot show that she suffered an adverse employment action, and thus has not established a prima facie case of discrimination. Under Article X(c) of the CBA, an employee who is absent for seven scheduled work days or more, without calling in to Goodyear explaining the reasons for her absence, is considered to have resigned without notice. Although this section technically applies to “absences without leave,” Article X(b)(1) of the CBA also states that “an employee who has been placed on the ‘Employment Roll,’ ” or medical leave, “continues to be responsible to report off directly to his resident department.” (JA 294-95.) Moreover, even if there is a strict textual question of whether the CBA subjects employees on medical leave to the same seven-day requirement, it is undisputed that the contract has been universally interpreted in such a manner. At Nance’s workers’ compensation proceeding, Lance Jackson, a manufacturing team specialist at Goodyear, testified to the requirements to call in while on medical leave:

“[W]e have got various numbers, they call off and report off daily until they get doctor’s coverage where they can report off once a week and some people report off daily at first and then they go to once a week. They usually report either to myself or to a call off phone.”

(JA 533.) Jackson’s testimony was unre-butted.

Furthermore, Nance was aware of these requirements. As a result of her initial injury, between April 19, 2002 and May 10, 2002, Nance took leave from work and “reported off’ for several weeks, but initially failed to document the reasons for her absences. By letter of May 10, 2002, Goodyear told her that she must continue to document the reason for her absence from work or else jeopardize her employment under the provisions of the CBA. Thus, she was on notice that Article X(c) applied not only to employees who are absent, but also to employees who are on medical leave. Goodyear confirmed this fact when Human Resources representative Hill sent Nance a letter, which Nance admits receiving, advising Nance that she was being placed on medical leave of absence. The letter reminded Nance that she is still “responsible for reporting off to [her] resident department.” (JA 284.) Indeed, Nance admits that prior to the termination of her employment relationship, she understood these very requirements.

Nance argues that Goodyear failed to follow company procedure in determining that she resigned without notice. In particular, she contends that Goodyear should have sent her a letter notifying her that she had failed to report in and given her a two day “cool-off’ period before officially ending the employment relationship. Although it is true that Nance did not receive either a written warning, a two-day suspension, or a notification that she would be terminated if she failed to “report in,” these procedural protections only apply when Goodyear is terminating an employee for cause under its disciplinary policy, not when an employee is deemed to have resigned without notice. If an employee is on approved medical leave of absence, and fails to report in for a period of seven days, the terms of the CBA are explicit: the employee is considered to have resigned without notice. And when an employee voluntarily resigns, she cannot *555claim that she suffered an adverse employment decision under the ADA. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 447 (6th Cir.1999).

Nance also argues that other employees on medical leave were not subject to the strict seven-day time-frame to report in. While testimony supports the contention that employees on medical leave did not have to call in every day, there is no evidence from the record that similarly situated employees were not required to report their absences altogether. Indeed, the facts of this particular case require us to place the fault directly on Nance. After Hill sent the January 8, 2004 letter reminding Nance of her obligation to call in on a regular basis, Nance did not return to work, nor did she call in to report her absences. A few weeks later, McClure, then Goodyear’s business center auditor for the plant’s Banbury area, called Nance at her home on January 29 and 30, 2004 to inquire about her absence. The first time he left a voice message which Nance said she did not receive. On January 30, he reached her by telephone, but Nance “told him [she] could not talk to him ... [a]nd [] hung up the phone.” (JA 224.) It appears that Goodyear made a good faith effort to give Nance an opportunity to explain her absenteeism. There is nothing in the record for us to conclude that anything more — e.g., a written notice, review board, or two-day suspension — should have been required.

Finally, according to the factors listed in Alexander, Nance’s prior arbitration resolves any ambiguity in favor of Goodyear. First, the hearing appeared to be procedurally adequate. Though Nance claims she was not represented by counsel, the record indicates that both Union representatives and a Union attorney appeared on her behalf, and that she was afforded an opportunity to present evidence, cross-examine witnesses called by Goodyear, and offer arguments in support of her position. And while the arbitral determination failed to give any consideration to Nance’s ADA claims, the issue in dispute was “solely one of fact, specifically addressed by the parties and decided by the arbitrator on the basis of an adequate record.” Alexander, 415 U.S. at 60 n. 21, 94 S.Ct. 1011.

2.

Nance contends that she was “constructively discharged” and thus subject to an adverse employment action when Goodyear forced her to work without a safety gate and under poor lighting. “To maintain an action for constructive discharge ..., [Nance] must show that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Neilley v. State Farm Ins. Co., No. 98-2114, 1999 WL 1281717, at *6 (6th Cir. Dec.29, 1999) (quoting Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 887 (6th Cir.1996)). We have required a plaintiff to “produce evidence of an intent to discriminate” in order to establish a constructive discharge claim. Id. This analysis “requires an inquiry into both the objective feelings of the employee and the intent of the employer.” Id. (citation omitted). Thus, even if Nance can show that a reasonable person in her position might be targeted, she must also show “foreseeability on the part of the employer.” Id.

We find no evidence that Nance’s working conditions were so difficult or unpleasant that a reasonable employee would resign. Between eleven and fifteen employees occupy the machine-cleaner position at any given time, working in three shifts over a twenty-four hour period, and none have complained about either the safety gate or the lighting. Furthermore, not only did Nance admit that she failed *556to file a grievance concerning any of her safety concerns, but she also quit after only four days of work. It would be difficult for Goodyear, through its supervisory personnel, to foresee that Nance would feel constructively discharged in such a short period of time.

The record is also barren of any evidence that Goodyear placed her in the machine-cleaner position with the intent to force her into resigning. The machine cleaner is an established bargaining-unit position that pays nearly the same as her previous job as a stock trucker. Even if we assume that the machine-cleaner position is less desirable than some other jobs, an assumption that Nance has not established, Goodyear did not violate the ADA by transferring Nance to that position. Burns v. Coca-Cola Enter., Inc., 222 F.3d 247, 258 (6th Cir.2000) (“Allowing [plaintiff] to recover despite his failure to abide by [defendant’s] non-discriminatory policy requiring him to apply for a transfer to a new position within his restrictions would convert a nondiscrimination statute into a mandatory preference statute, a result which would be inconsistent with the nondiscriminatory aims of the ADA.”) (citation omitted).

3.

Because we have determined that, under the provisions of her contract with Goodyear, Nance effectively resigned by not reporting in, it is not necessary to address the rest of her ADA claims. Hammon, 165 F.3d at 447; see also EEOC v. United Parcel Serv., Inc., 249 F.3d 557, 563 (6th Cir.2001) (per curiam).

However, even if we were to address Nance’s arguments that she did not receive the required reasonable accommodations under the ADA, they are meritless. The ADA defines “discrimination” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). The Act further defines “reasonable accommodation” to include:

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Id. § 12111(9).

The ADA’s regulations indicate that, “[t]o determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the qualified individual with a disability in need of accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). “Even though the interactive process is not described in the statute’s text, the interactive process is mandatory, and both parties have a duty to participate in good faith.” Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir.2007).

Nance alleges that Goodyear failed reasonably to accommodate her in the following ways: (1) It did not provide her with a safety bar and adequate lighting at the machine-cleaner position; (2) It did not provide her reasonable accommodations for the stock-trucker position; (3) It generally acted in bad faith.

*557First, Nance provides no evidence that both the safety bar and lighting were necessary accommodations in light of her physical limitations. Nor does Nance show that she could not, because of her disability, meet the demands of the machine-cleaner position. Admittedly the tools that Goodyear gave Nance, which included a hand-held scoop made from a coffee can and two teflon pans, appear crude. But however crude these tools might be, they were officially recommended by Goodyear’s physical therapist, Gilliam. In any event, Nance does not dispute their effectiveness.

Moreover, the record shows that Goodyear met with Nance, her Union representative, and Gilliam to review lists of jobs at the plant in an effort to match her lifting restrictions with the jobs’ physical requirements. After initially placing her in the stock-trucking position, Nance removed herself from that position because of neck and shoulder pain. Nance was officially medically disqualified from that job in a meeting where she and her Union representative were present. Outside of Nance’s general allegations, there is simply no specific evidence that Goodyear participated in these meetings in bad faith. See Kleiber, 485 F.3d at 871 (“When a party obstructs the process or otherwise fails to participate in good faith, courts should attempt to isolate the cause of the breakdown and then assign responsibility.”) (citation omitted). Finally, even if Goodyear could modify the stock-trucking position, the ADA explicitly includes “reassignment to a vacant position” as a reasonable accommodation. As such, Nance’s transfer to the machine-cleaner position could in no way be construed as a violation of the ADA.

It is not entirely clear whether Nance is also arguing that she was denied another job at Goodyear for which she was qualified. Nevertheless, to overcome summary judgment, the plaintiff generally must identify the specific job she seeks and demonstrate that she is qualified for that position. Burns, 222 F.3d at 258-59. Because she has failed to meet her burden in all respects, summary judgment is appropriate.

IV. FMLA CLAIMS

Nance further alleges that she is qualified for FMLA leave. The FMLA entitles eligible employees to twelve weeks of unpaid leave during any twelve-month period for certain statutorily prescribed reasons. 29 U.S.C. § 2612(a)(1). The FMLA defines the term “eligible employee” as:

[A]n employee who has been employed—

(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; 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).

It is undisputed that Nance actually worked only 374 hours, well below the 1250-hour threshold she needed to qualify under the FMLA. However, Nance appears to argue that her post-termination hours should count toward the FMLA calculation,' and points to this Court’s decision in Ricco v. Potter, 377 F.3d 599, 605 (6th Cir.2004), for support. In Ricco, this Court created an exception for “hours that the employee wanted to work but was unlawfully prevented by the employer from” doing so. Id. (emphasis in original). It explicitly distinguished time that an employee does not work due to unlawful termination from failure to work due to vacation or illness. Id. Since we have already determined that Nance resigned without *558notice, and was not unlawfully terminated, she does not meet the hours requirement, and so she is not qualified for relief under the FMLA.

V.RETALIATORY DISCHARGE AND WHISTLEBLOWER CLAIMS

Nance appears to argue that Goodyear terminated her for “reporting dangerous working conditions” in violation of the Tennessee Public Protection Act, also known as the Whistleblower Law, Tenn.Code Ann. § 50-l-304(a), but fails to cite either statute in her appellate brief or develop the argument with specificity. Accordingly, her argument is waived. See Indeck Energy Serv., Inc. v. Consumers Energy Co., 250 F.3d 972, 979 (6th Cir.2000) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived ....”) (citation omitted). Even if we were to consider this argument, to make a prima facie case of retaliatory discharge under the Act, the employee must prove that she was actually discharged. Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528, 535 (Tenn.2002). For the reasons set forth above, Nance has not met this requirement.

VI.OUTRAGEOUS CONDUCT AND BREACH OF DUTY OF GOOD FAITH AND FAIR DEALING CLAIMS

Neither of these arguments is developed with sufficient specificity, and therefore each is waived. Nevertheless, these claims are also meritless. To prove “outrageous conduct,” a plaintiff must show that the defendant’s conduct “has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Bain v. Wells, 936 S.W.2d 618, 623 (Tenn.1997) (citation omitted). Moreover, the duty of good faith and fair dealing “requires a contracting party to do nothing that will have the effect of impairing or destroying the rights of the other party to receive the benefits of the contract.” Elliott v. Elliott, 149 S.W.3d 77, 85 (Tenn.Ct.App.2004). Nance bases both these claims on the allegation that Goodyear placed her in a dangerous workplace condition and terminated her illegally. Because we find that Nance resigned without notice pursuant to the terms of her contract, and that Goodyear did not subject Nance to unfair working conditions, Goodyear cannot be held liable under either of these claims.

VII.CONCLUSION

In sum, Nance has not raised a genuine issue of material fact as to any of her claims. Accordingly, we AFFIRM the judgment of the district court.