Hedrick v. Western Rsrv

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hedrick v. Western Reserve No. 02-3898 ELECTRONIC CITATION: 2004 FED App. 0012P (6th Cir.) Care System, et al.

File Name: 04a0012p.06

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UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Ira J. Mirkin, GREEN, HAINES, & _________________ SGAMBATI, Youngstown, Ohio, for Appellant. Domenic A.

Bellisario, LAW OFFICE, Pittsburgh, Pennsylvania, for JOANNE HEDRICK, X Appellee. ON BRIEF: Ira J. Mirkin, Barry R. Laine, Plaintiff-Appellant, - GREEN, HAINES, & SGAMBATI, Youngstown, Ohio, for - Appellant. Domenic A. Bellisario, LAW OFFICE, - No. 02-3898 Pittsburgh, Pennsylvania, for Appellee.

v. -

> _________________ ,

WESTERN RESERVE CARE - SYSTEM and FORUM HEALTH , - OPINION

_________________

Defendants-Appellees. -

- RICHARD MILLS, District Judge.

N

Appeal from the United States District Court A suit alleging both age and disability discrimination. for the Northern District of Ohio at Cleveland. No. 99-00630—Lesley Brooks Wells, District Judge. Joanne Hedrick worked for Western Reserve Care System as a registered nurse for twenty-two years before taking a Argued: October 21, 2003 medical leave of absence. When she attempted to return to work, Hedrick alleged that Western Reserve Care System and Decided and Filed: January 9, 2004 its holding company, Forum Health, discriminated against her on account of her age, in violation of the Age Discrimination Before: MARTIN and SUTTON, Circuit Judges; MILLS, in Employment Act (29 U.S.C. § 621 et seq.), and on account District Judge.* of her disability, in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) and Ohio Revised Code Chapter 4112.

Upon completion of discovery, the district court granted summary judgment in Western Reserve Care System’s favor on all three of Hedrick’s claims against it and denied Hedrick’s motion for partial summary judgment.

* We AFFIRM the judgment of the district court. The Hon orable R ichard M ills, United States District Judge for the Central District of Illinois, sitting by designation.

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I. BACKGROUND return to bedside nursing, and frankly I share her reservations.”

Joanne Hedrick was born on June 10, 1948. Hedrick received an associate’s degree in nursing in 1973 and, On July 16, 1996, Hedrick underwent a functional capacity thereafter, became employed as a general duty staff nurse by evaluation in order to determine her ability to return to work the Youngstown Hospital Association, i.e., the predecessor of and, if it was determined that she was able to return to work, Western Reserve Care System (“WRCS”). As a general duty the limitations, if any, she would have. This evaluation staff nurse, Hedrick performed typical bedside nursing indicated that Hedrick would be unable to return to her functions for WRCS. previous position as a general duty staff nurse at WRCS because of her physical limitations in bending and lifting and During the late 1980's, Hedrick was diagnosed as having due to the pain in her knees. As a result of this evaluation, osteoarthritis in her left knee. In the early 1990's, her Dr. Nash wrote to Jon R. Steen, WRCS’s human resources condition progressed, and Hedrick was diagnosed as having director, on August 7, 1996, and requested that Hedrick be and was treated for osteoarthritis in both knees. Since her considered for other positions. initial diagnosis, Hedrick has been treated by her family physician, Dr. L. Kevin Nash, and by her orthopedic surgeon, In July or August 1996, Hedrick asked to be placed upon Dr. Raymond Duffett. WRCS’s list of employees who claimed to have permanent work restrictions.1 This list was commonly referred to as the On December 1, 1995, Hedrick fell and broke her leg which “ADA list.” Once an employee was placed upon the ADA necessitated surgery (performed by Dr. Duffett) and a medical list, WRCS attempted to find suitable employment for those leave of absence from work in order to recuperate. On employees who could no longer perform the duties of their April 29, 1996, Dr. Duffett released Hedrick to return to work regular positions. On September 24, 1996, Dr. Nash wrote a without any restrictions effective June 1, 1996. letter to Steen regarding Hedrick’s precise limitations and reported that Hedrick was able to conduct daily activities for However, on May 3, 1996, Hedrick visited Dr. Nash and short intervals, to walk short distances, and to stand, drive, expressed her reservations about her ability to return to work and perform desk work for short periods of time. Upon as a general duty staff nurse because she was concerned that receipt of Dr. Nash’s letter and pursuant to her request, she would be unable to perform her duties. Although he did WRCS placed Hedrick on the ADA list, and subsequently, not initially share Hedrick’s reservations regarding her ability WRCS began identifying job vacancies which corresponded to return to work as a general duty staff nurse, Dr. Nash with Hedrick’s background, skills, and medical restrictions. subsequently reversed his opinion and agreed that Hedrick would be unable to resume her bedside nursing duties. On In late September 1996, Ann Marie Ondo, WRCS’s July 1, 1996, Dr. Nash wrote a letter to Sue Yoder, WRCS’s employment coordinator, informed Hedrick of an opening as director of nursing, in which he reported that “Ms. Joanne a referral center scheduler. Hedrick interviewed for the Hedrick has been making a very slow recovery after her devastating fracture of the left femur. Joanne has shared with me that she does not believe that she is going to be able to 1 WRCS would only place an employee on the ADA list upon that emp loyee’s request.

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position with Lorraine Nelson and Mary Pat Foley, and that she would not have to interview for the position because during the interview, one of the interviewers asked her about she had recently interviewed for another quality assurance her physical limitations. Hedrick responded that she would position. In late March or early April 1997, Ondo advised be able to fully perform the job’s requirements. However, Hedrick that she had not been selected for the position. upon learning of the salary, Hedrick indicated that she was Thereafter, Hedrick and Ondo continued to communicate not interested in the position because the salary was too low. regarding various vacancies at WRCS, but Hedrick was not Although it is unclear whether the position was formally interested in any of these vacancies. offered to Hedrick, it is clear that Hedrick understood that the job was hers if she wanted it and that she specifically told In August 1997, Carol Olson contacted Hedrick regarding Nelson and Foley that she would not take the position. a temporary assignment as an admissions nurse. Hedrick accepted the position and returned to work with WRCS on Later that same month, Ondo informed Hedrick of an open August 25, 1997, at no loss of earnings or benefits. quality assurance position. Hedrick interviewed with Nelson for the position in November 1996, and, again, Nelson asked After receiving a right to sue letter from the Equal her about her physical limitations because the position Employment Opportunity Commission, Hedrick filed a timely involved some walking and lifting. Hedrick responded that suit against WRCS and its parent corporation, Forum Health, she did not believe that her physical limitations would be an in federal district court on March 17, 1999. Hedrick’s issue and that, although she may not walk as fast as others, Complaint contained three Counts: Count I alleged a cause of she could get from point “A” to “B.” Ultimately, WRCS action pursuant to the Americans with Disabilities Act selected an applicant other than Hedrick for the quality (“ADA”), 42 U.S.C. § 12131 et seq.; Count II alleged a cause assurance position. of action pursuant to Ohio Revised Code Chapter 4112 which prohibits discrimination on the basis of handicap; and Count In January 1997, Ondo informed Hedrick of four case III alleged a cause of action pursuant to the Age manager vacancies in the department of medicine. Hedrick Discrimination in Employment Act (“ADEA”), 29 U.S.C. interviewed for the positions with Dr. Paul Bunn who also § 621 et seq.2 asked her about her physical limitations because the positions entailed a fair amount of walking. Hedrick, again, responded At the close of the discovery period, Hedrick moved for that she would have no problems fulfilling the duties of the partial summary judgment on the issues of whether she was positions, and Dr. Bunn assured her that she would not be “disabled” within the meaning of the ADA and whether hired for her leg work and that the hiring decision would be WRCS had failed to reasonably accommodate her disability. based upon experience and knowledge. In February 1997, WRCS and Forum Health, in turn, moved for summary Ondo informed Hedrick that the four case manager positions judgment on each of Hedrick’s claims against them. The were filled by other more qualified applicants. district judge referred the cross-motions for summary judgment to a magistrate judge who filed a report and About a week later, Ondo informed Hedrick that another qualify assurance position was vacant, and Hedrick expressed an interest in the job. Although Hedrick was initially 2 Hedrick filed an Amended Complaint on January 14, 2000, which scheduled for an interview in March 1997, Nelson advised her did not alter her three causes of action.

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recommendation which recommended that summary U.S. 317, 323 (1986). An issue of fact is “genuine” if the judgment be entered in WRCS and Forum Health’s favor on evidence is such that a reasonable jury could return a verdict all three of Hedrick’s claims and also recommended that for the non-moving party. Anderson v. Liberty Lobby, Inc., Hedrick’s motion for summary judgment be denied. 477 U.S. 242, 248 (1986). Determination of whether a fact is “genuine” requires consideration of the applicable evidentiary Hedrick filed objections to the magistrate judge’s report standard. Id. A fact is “material” only if its resolution will and recommendation with the district judge, but the district affect the outcome of the lawsuit. Id. “Once the moving party judge denied her objections, adopted the magistrate judge’s satisfies its burden, ‘the burden shifts to the nonmoving party report and recommendation, denied her motion for summary to set forth specific facts showing a triable issue.’” Wrench judgment, and entered summary judgment in WRCS and LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. Forum Health’s favor on all three Counts of Hedrick’s 2001)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Amended Complaint. Thereafter, Hedrick filed a timely Corp., 475 U.S. 574, 587 (1986)). notice of appeal.

As for Hedrick’s motion for partial summary judgment, an II. ANALYSIS3 order denying summary judgment ordinarily constitutes a non-appealable, interlocutory order. Pacific Union A. STANDARD OF REVIEW Conference of Seventh-Day Adventists v. Marshall, 434 U.S.

1305, 1306 (1977). However, because Hedrick’s appeal is We review a district court’s order granting summary from a final judgment, the denial of her motion for partial judgment de novo. Equitable Life Assurance Soc’y v. Poe, summary judgment is reviewable. Tetro v. Elliott Popham 143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d appropriate where “the pleadings, depositions, answers to 988, 992 (6th Cir. 1999). “We . . . review de novo a district interrogatories, and admissions on file, together with the court’s order denying summary judgment, if the denial is affidavits, if any, show that there is no genuine issue as to any based on purely legal grounds. If the denial is based on the material fact and that the moving party is entitled to a district court’s finding of a genuine issue of material fact, judgment as a matter of law.” Fed. R. Civ. P. 56 (c). The however, we review for abuse of discretion a district court’s moving party has the initial burden of showing the absence of order denying summary judgment.” Black v. Roadway a genuine issue of material fact as to an essential element of Express, Inc., 297 F.3d 445, 448 (6th Cir. 2002)(internal the non-moving party’s case. Celotex Corp. v. Catrett, 477 citations omitted).

3 Hedrick did not file an objection with the district court to the magistrate judge’s recommendation tha t Forum H ealth was entitled to summary judgment or to the magistrate judg e’s finding that she had waived her disability claim based upon obesity by failing to assert it at the summary judgment stage. Likewise, Hedrick has not challenged on appeal the district court’s dismissal o f Forum H ealth or her disability claim based upon obesity, and th us, those issues are waived and are not before the C ourt.

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B. ADA CLAIM4 position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged The ADA provides, in relevant part, that “[n]o covered “essential” job requirement eliminated; or (c) with a entity shall discriminate against a qualified individual with a proposed reasonable accommodation. (3) The employer disability because of the disability of such individual in will bear the burden of proving that a challenged job regard to job application procedures, the hiring, advancement, criterion is essential, and therefore a business necessity, or discharge of employees, employee compensation, job or that a proposed accommodation will impose an undue training, and other terms, conditions, and privileges of hardship upon the employer. employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of disability discrimination under the ADA, Monette, 90 F.3d at 1186. When a plaintiff seeks to establish a plaintiff must establish that: “1) he is an individual with a his case indirectly, however, the McDonnell Douglas burdendisability ; 5 2) he is ‘otherwise qualified’ to perform the job shifting approach applies so that the requirements, with or without reasonable accommodation; and 3) he was [not hired] solely by reason of his handicap.” plaintiff may establish a prima facie case of Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178 discrimination by showing that: (1) he or she is disabled; (6th Cir. 1996) (footnote added)(citations omitted). A (2) otherwise qualified for the position, with or without plaintiff may prove that he was discriminated against based reasonable accommodation; (3) suffered an adverse upon his disability either through direct or indirect evidence. employment decision; (4) the employer knew or had Id. reason to know of the plaintiff’s disability; and (5) the position remained open while the employer sought other We have previously explained that in cases where the applicants or the disabled individual was replaced. The plaintiff presents direct evidence of disability discrimination: defendant must then offer a legitimate explanation for its action. If the defendant satisfies this burden of (1) The plaintiff bears the burden of establishing that he production, the plaintiff must introduce evidence or she is disabled. (2) The plaintiff bears the burden of showing that the proffered explanation is pretextual. establishing that he or she is “otherwise qualified” for the Under this scheme, the plaintiff retains the ultimate burden of persuasion at all times.

4 Id. at 1186-87; Walsh v. United Parcel Serv., 201 F.3d 718, Because the essential elements of an ADA claim and a claim under 724-25 (6th Cir. 2000).

the Ohio handicap discrimination statute are identical, our analysis of Hedrick’s ADA claim also reso lves her state law claim . Plant v. Morton Int’l, Inc., 212 F.3d 929, 938-39 (6th Cir. 2000); Hoffman v. F idelity As this Court recognized in Kline v. Tennessee Valley Brokerage Servs., Inc., 959 F. Supp. 452 , 457 n. 1 (S.D. Ohio 19 97). Auth., 128 F.3d 336 (6th Cir. 1997), “[t]he direct evidence and circumstantial evidence paths are mutually exclusive; a 5 Under the ADA , the term “disability” is defined as “(A) a physical plaintiff need only prove one or the other, not both. If a or mental impairment that substantially limits one or more of the major plaintiff can produce direct evidence of discrimination then life activities of such individual; (B) a record of such an impairment; or the McDonnell Douglas-Burdine paradigm is of no (C) being regarded as having such an impairment.” 42 U.S.C. § 1210 2(2); consequence. Similarly, if a plaintiff attempts to prove its Toy ota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 193 (200 2).

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case using the McDonnell Douglas-Burdine paradigm, then Second, Hedrick contends that, contrary to the district the party is not required to introduce direct evidence of court’s conclusion, Dr. Nash’s testimony regarding Nelson’s discrimination.” Id. at 348-49. statement to him created a genuine issue of material fact sufficient to deny WRCS’s motion for summary judgment.

As the district court correctly noted, the crux of Hedrick’s Hedrick asserts that the district court erred in holding that the Amended Complaint against WRCS is that WRCS unlawfully direct evidence standard requires a defendant’s admission in discriminated against her by failing to award her one of the order to constitute direct evidence of disability discrimination. four case manager positions or one of the two quality On the contrary, Hedrick claims that this Court’s opinion in assurance positions for which she applied. Hedrick argues Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001), that she established her prima facie case of disability establishes that isolated comments may constitute direct discrimination under the ADA via both the direct and the evidence of disability discrimination sufficient to defeat a indirect method. defendant’s summary judgment motion. Accordingly, Hedrick asks us to reverse the district court’s grant of 1. Direct Evidence summary judgment against her. a. Arguments b. Conclusions As for her direct evidence of disability discrimination, We find that the district court did not err in finding Hedrick relies upon the testimony of Dr. Nash who testified Hedrick’s direct evidence of disability discrimination that Nelson “expressed concern to me that she felt that insufficient to withstand WRCS’s summary judgment motion. [Hedrick’s] medical condition would prohibit her from being While it is true (as cited by Hedrick) that some of our sister able to perform this job as case manager.” Hedrick contends circuits have held that an ADA plaintiff need not demonstrate that the district court erred in rejecting this direct evidence of that disability was the sole reason for the adverse employment disability discrimination–as grounds for denying WRCS’s action but only that it played a motivating role in the decision, motion for summary judgment–for two reasons. e.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000), Monette and Walsh remain good law in this First, Hedrick asserts that the district court erred in circuit, and we are bound by this authority. See McLeod v. requiring her to establish that she was denied one of the Parsons Corp., 2003 WL 22097841, * 11 (6th Cir. Sept. 5, vacant job positions for which she applied solely because of 2003)(“We decline McLeod’s request that this panel permit unlawful disability discrimination. Although she plaintiffs to recover under the ADA in mixed motive cases. acknowledges that Monette and its progeny hold that an Adopting the approach followed by several other circuits ADA plaintiff must establish that the adverse employment would require the panel to make a substantial departure from action occurred “solely by reason of his handicap,” Monette, this Court’s holdings in Walsh and Monette. Under Salmi v. 90 F.3d at 1178, Hedrick claims that this holding is no longer Secretary of Health and Human Services, 774 F.2d 685, 689 good law. Rather, Hedrick argues that all she needed to show (6th Cir. 1985), one panel of this Court cannot reverse the in order to establish her prima facie case under the ADA was holding of another panel unless there is a contrary Supreme that discriminatory animus played a part in WRCS’s hiring Court decision or en banc decision by this Court. Id.”). decision, not that it was the sole reason. Accordingly, the district court did not err in requiring Hedrick

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to show that her disability was the sole reason for WRCS’s regarded Ross through the lens of his medical condition.”). decision not to hire her for one of the four case manager In the instant case, Hedrick tendered Nelson’s statement to positions or one of the two quality assurance positions for Dr. Nash in an attempt to tender direct evidence of WRCS’s which she applied. discriminatory animus sufficient to establish her prima facie case under the ADA, not merely to establish that WRCS Furthermore, we agree that Ross is distinguishable from the regarded her as being disabled.6 instant case. In Ross, we held that the district court erred in dismissing, as isolated and insufficient to constitute direct Finally, the Ross memorandum is distinguishable in that the evidence of discriminatory animus, a memorandum which memorandum’s tone was clearly discriminatory, see id. (“Not referred to the plaintiff as a “back case.” Ross, 237 F.3d at only does the note identify Ross as a ‘problem person,’ a 706-07. Although it is true that the Ross court concluded comment which cannot be taken in a positive light, but it also “that the district court too easily dismissed the ‘back case’ identifies him as a ‘back case.’ The ADA was enacted, in memo as direct evidence of discrimination by the employer,” part, to eliminate the sort of stereotyping that allowed id. at 707, when viewed in the entire context of the case and employers to see their employees primarily as their of the court’s opinion, it is clear that the back memorandum disabilities and not as persons differently abled from was but one event in a series of comments and reports which, themselves.”), while Nelson’s comment to Dr. Nash was when taken cumulatively, was sufficient to create a genuine clearly an expression of concern for Hedrick’s ability to issue of material fact precluding summary judgment. Here, perform the jobs’ requirements which included a fair amount Hedrick has tendered no series of comments or reports which of walking. Accordingly, we agree with the district court that would indicate WRCS’s discriminatory animus, and thus, Hedrick failed to tender any direct evidence in support of her Nelson’s comment to Dr. Nash may properly be characterized ADA claim against WRCS. as isolated and insufficient to create a genuine issue of material fact regarding WRCS’s discriminatory intent. 2. Indirect Evidence

In addition, the plaintiff in Ross tendered the memorandum a. Arguments in order to establish that his employer regarded him as being disabled, and the Ross court held that the memorandum, when As for her indirect evidence of disability discrimination, viewed in combination with other evidence, was sufficient to Hedrick argues that only the first two elements of her create a genuine issue of material fact with regard to that prima facie case are in dispute because it is undisputed that element. See id. at 706 (“We conclude that Ross has presented she satisfied elements three, four, and five. She suffered an sufficient evidence to create a genuine issue of material fact adverse employment decision (i.e., she was not hired for one concerning his claim that the company regarded him has [sic] of the four vacant case manager positions and/or for one of a person with a disability within the meaning of the Act. the two quality assurance positions); WRCS knew of her Perhaps the piece of evidence most indicative of this fact is disability; and the positions remained open while WRCS the ‘back case’ memo . . . .”); see also id. at 707 (“That the note’s author would think to identify Ross with the scrawled post-script ‘back case’ demonstrates that there is at least a 6 In any event, as will be discussed infra, Hedrick has failed to show genuine issue of material fact that Campbell Soup Co. that she is a “qualified individual with a disability.” 42 U.S.C. § 12111 (8).

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sought other applicants, and non-disabled applicants were her on its ADA list, and that WRCS asked her about her chosen for the positions rather than her. Hedrick asserts that physical limitations during several of her interviews. the district court erred in concluding that she did not show the Accordingly, Hedrick argues that a genuine issue of material existence of a genuine issue of material fact as to the first two fact existed regarding whether she was “disabled” within the elements of her prima facie case, and therefore, she asks us to meaning of the ADA and that the district court committed reverse the district court’s summary judgment order. reversible error in finding her not to be disabled.

Regarding the first element of her prima facie case, Hedrick Regarding the second element of her prima facie case, argues that her osteoarthritis in her knees constitutes a Hedrick contends that WRCS did not provide her with a “disability,” as that term is defined in the ADA, (1) because reasonable accommodation as required under the ADA. her condition is a physical impairment which substantially Specifically, Hedrick claims that the district court erred in limits her major life activities of walking and working; concluding that the referral center scheduler position was a (2) because she has a record of having such an impairment; reasonable accommodation which satisfied WRCS’s and (3) because WRCS regarded her as having a disabling obligations under the ADA and, as a result, erred in ruling impairment. 42 U.S.C. § 12102(2); Toyota Motor Mfg., 534 that she was not “a qualified individual with a disability.” U.S. at 193.

In making this finding, Hedrick asserts that the district First, Dr. Nash testified that, in his medical opinion, court resolved disputed issues of fact which were not properly Hedrick’s osteoarthritis in her knees rendered her disabled determinable on summary judgment: the district court found within the meaning of the ADA and that her condition is that WRCS offered Hedrick the referral center scheduler severe and permanent. Dr. Nash also testified that Hedrick position, that she refused it, and that the referral center could not perform a broad range of nursing jobs due to her scheduler position was a reasonable accommodation. limited ability to work and walk– both of which are Because genuine issues of material fact existed regarding the considered to be major life activities under the ADA. first two elements of her prima facie case, Hedrick argues that the district court committed reversible error in entering Second, Hedrick contends that Dr. Nash’s correspondence summary judgment against her on her ADA claim. with WRCS, her functional capacity evaluation, and the fact that she was on WRCS’s ADA list establish that she had a b. Conclusions record of having a disabling impairment and, taken individually or collectively, constitute sufficient evidence to We find that the district court did not err in entering create a genuine issue of material fact as to whether she is summary judgment in WRCS’s favor because Hedrick did not disabled. satisfy her prima facie case of disability discrimination under the McDonnell Douglas burden-shifting method. In reaching Third, Hedrick claims that WRCS regarded her as having this conclusion, we need not resolve the thornier issue of a disabling impairment and that the district court erred in whether Hedrick was “disabled” under the ADA because it is holding otherwise. In support of her argument, Hedrick notes clear that, even assuming that she was disabled, she was not that WRCS agreed that she could not resume her general duty a qualified individual with a disability. Accordingly, we staff nurse position due to her condition, that WRCS placed affirm the district court.

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“A ‘qualified individual with a disability’ is defined as ‘an Although a “reasonable accommodation” may include individual with a disability who, with or without reasonable reassignment to a vacant position, 42 U.S.C. § 12111(9)(B); accommodation, can perform the essential functions of the 29 C.F.R. § 1630.2(o)(2)(ii), an employer need not reassign employment position that such individual holds or desires.’” a disabled employee to a position for which he is not Black, 297 F.3d at 448 (quoting 42 U.S.C. § 12111(8)); see 29 qualified, nor is the employer required to waive legitimate, C.F.R. § 1630.2(m)(“Qualified individual with a disability non-discriminatory employment policies or displace other means an individual with a disability who satisfies the employees’ rights in order to accommodate a disabled requisite skill, experience, education and other job-related employee. Burns, 222 F.3d at 257. On the contrary, requirements of the employment position such individual holds or desires, and who, with or without reasonable [a]ccording to the regulations, an employer need only accommodation, can perform the essential functions of such reassign a disabled employee to a vacant position. position.”). As we have previously explained: Employers are not required to create new jobs, displace existing employees from their positions, or violate other To recover under the ADA, a plaintiff must do more than employees’ rights under a collective bargaining show that he is “disabled” within the meaning of the agreement or other non-discriminatory policy in order to statute. He must also establish that he is a “qualified accommodate a disabled individual. individual with a disability” by showing: (1) that he “satisfies the prerequisites for the position [he holds or Id. (internal citations omitted). desires], such as possessing the appropriate educational background, employment experience, [and] skills . . .”; Furthermore, in order to satisfy its duty under the ADA, an and (2) that he “can perform the essential functions of the employer is only required to transfer an employee to a position held or desired, with or without reasonable position comparable to the employee’s prior position. Hoskins accommodation.” v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 728 n. 3 (6th Cir. 2000). “The regulations instruct that employers Burns v. Coca-Cola Enter., Inc., 222 F.3d 247, 256 (6th Cir. ‘should reassign the individual to an equivalent position, in 2000)(quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d terms of pay, status, etc., if the individual is qualified, and if 667, 676 (7th Cir. 1998)). the position is vacant within a reasonable amount of time,’

and should only reassign an individual to a lower graded “A disabled employee who claims that he or she is position if the individual cannot be accommodated in an otherwise qualified with a reasonable accommodation ‘bears equivalent position. 29 C.F.R. pt. 1630, App. § 1630.2(o).” the initial burden of proposing an accommodation and Id. The ADA does not require an employer to offer an showing that that accommodation is objectively reasonable.’” employee a promotion as a reasonable accommodation, Cassidy v. Detroit Edison Co., 138 F.3d 629, 633-34 (6th Cir. Cassidy, 138 F.3d at 634, and “an employee cannot make his 1998)(quoting Monette, 90 F.3d at 1183). An employer, then, employer provide a specific accommodation if another has the burden of persuasion to show that an accommodation reasonable accommodation is instead provided.” Hankins v. would impose an undue hardship. Id. at 634; Monette, 90 F.3d The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)(citing at 1184. Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69 (1986)). In fact, where a comparable position is not vacant,

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an employer’s obligation to reassign an employee may A. I stated that I expected the cut in salary when I came include an assignment to a position with a lower grade of pay back; but I did not expect that drastic of a cut when I if the employee meets the job’s qualifications. Cassidy, 138 came back. F.3d at 634.

***

Finally, the regulations indicate that, although an employee is not required to accept an offered accommodation, if an A. It became a consensus at that point in time that I was individual rejects a reasonable accommodation, the individual overqualified. And I told them I would not take the will no longer be considered a qualified individual with a position. disability. Hoskins, 227 F.3d at 728 n. 3; Hankins, 84 F.3d at 801. Specifically, 29 C.F.R. § 1630.9(d) provides: Q. You said you would not take the position had they offered it to you?

A qualified individual with a disability is not required to accept an accommodation, aid, service, opportunity or A. I assumed if they would have offered to me that with benefit which such qualified individual chooses not to my – I just made the statement that I wasn’t interested accept. However, if such individual rejects a reasonable in that position at that point in time because I did not accommodation, aid, service, opportunity or benefit that think it was for me. is necessary to enable the individual to perform the essential functions of the position held or desired, and Q. And is the reason that you didn’t think it was for you cannot, as a result of that rejection, perform the essential because of the salary? functions of the position, the individual will not be considered a qualified individual with a disability. A. Yes.

Id. Thus, although Hedrick may have personally believed that she was overqualified for the position and that the salary was too In the instant case, we agree with the district court that the low, WRCS satisfied its obligation under the ADA by referral center scheduler position was a reasonable offering a reasonable accommodation when it made the accommodation and that Hedrick cannot be considered a referral center scheduler position available to her. qualified individual with a disability based upon her rejection of that position. As noted supra, although it is unclear In addition, we agree with the district court that the referral whether WRCS formally offered the position to Hedrick, it is center scheduler position was comparable to her previous clear, based upon her own deposition testimony, that Hedrick position and that the four case manager positions and the two understood that the job was hers if she wanted it and that she quality assurance positions were neither vacant nor preemptively rejected the position by informing Nelson and comparable. Although Hedrick asserts that she was Foley that she would not take the position because of its low overqualified for the referral center scheduler position salary: because she was a registered nurse, WRCS eventually filled the position with a registered nurse who, like Hedrick, was coming off of a disability leave.

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Likewise, although it is true that one of the quality discrimination against qualified individuals with disabilities, assurance positions became available just nine days after the no more and no less.”); Terrell v. USAir, Inc., 132 F.3d 621, referral center scheduler position became available, it is also 627 (11th Cir. 1998)(“We cannot accept that Congress, in true that the quality assurance positions were not comparable enacting the ADA, intended to grant preferential treatment for to her previous position because they were salaried, non- disabled workers.”). bargaining positions which would have constituted a promotion. As such, WRCS had no duty to offer the quality Accordingly, we find that the district court correctly entered assurance positions to Hedrick. Cassidy, 138 F.3d at 634. As summary judgment in WRCS’s favor on Hedrick’s ADA for the case manager positions, although the jobs would not claim because she failed to tender direct evidence of disability have constituted a promotion, the record reflects that they did discrimination sufficient to withstand WRCS’s summary not become available until well after the referral center judgment motion, because she cannot be considered a scheduler position became available, and Hedrick presented qualified individual with a disability based upon her rejection no evidence to establish that WRCS knew that these positions of the proffered referral center scheduler position, and would soon become available when it offered her the referral because WRCS satisfied its obligations under the ADA of center scheduler position.7 offering a reasonable accommodation to Hedrick by making the referral center scheduler position available to her.

Finally, contrary to Hedrick’s argument, her disability did not provide her with a preference in WRCS’s hiring practices. C. ADEA CLAIM Although WRCS may have had an obligation to reassign her to a vacant position for which she was qualified, the ADA The ADEA provides in relevant part: “It shall be unlawful does not mandate that she be afforded preferential treatment. for an employer– (1) to fail or refuse to hire or to discharge E.g., Burns, 222 F.3d at 258 (quoting Dalton, 141 F.3d at any individual or otherwise discriminate against any 679)(“Allowing Burns to recover despite his failure to abide individual with respect to his compensation, terms, by KCC’s non-discriminatory policy requiring him to apply conditions, or privileges of employment, because of such for a transfer to a new position within his restrictions would individual’s age.” 29 U.S.C. § 623(a)(1). Like the ADA, a ‘convert a nondiscrimination statute into a mandatory plaintiff attempting to establish a claim under the ADEA may preference statute, a result which would be inconsistent with do so by producing either direct evidence, or he may rely the nondiscriminatory aims of the ADA.’”); Daugherty v. City upon the McDonnell Douglas burden-shifting method. Kline, of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)(“we do not read 128 F.3d at 348-49; Mitchell v. Toledo Hosp., 964 F.2d 577, the ADA as requiring affirmative action in favor of 582 n. 4 (6th Cir. 1992). individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment Moreover, like her ADA claim, the gist of Hedrick’s ADEA over those who are not disabled. It prohibits employment claim is that WRCS discriminated against her by failing to award her one of the case manager positions and/or one of the

7 W RCS offered Hedrick the referral center scheduler position in September 1996, and the case manager positions becam e available in December 1996.

No. 02-3898 Hedrick v. Western Reserve 23 24 Hedrick v. Western Reserve No. 02-3898 Care System, et al. Care System, et al.

quality assurance positions for which she applied.8 However, To make a submissible case on the credibility of his unlike her ADA claim, Hedrick acknowledges that she cannot employer’s explanation, the plaintiff is required to produce any direct evidence in support of her ADEA claim. show by a preponderance of the evidence either Accordingly, Hedrick has attempted to establish her ADEA (1) that the proffered reasons had no basis in fact, claim pursuant to the indirect method. (2) that the proffered reasons did not actually motivate his discharge, or (3) that they were insufficient to In order to establish a prima facie case of age motivate discharge. The first type of showing is easily discrimination pursuant to the McDonnell Douglas burden- recognizable and consists of evidence that the shifting method, proffered bases for the plaintiff’s discharge never happened, i.e., that they are factually false. The third a plaintiff must establish that: (1) he was at least 40 years showing is also easily recognizable and, ordinarily, old at the time of the alleged discrimination; (2) he was consists of evidence that other employees, particularly subjected to an adverse employment action; (3) he was employees not in the protected class, were not fired otherwise qualified for the position; and (4) after he was even though they engaged in substantially identical rejected, a substantially younger applicant was selected. conduct to that which the employer contends See Barnett v. Dep’t of Veterans Affairs, 153 F.3d 338, motivated its discharge of the plaintiff. These two 341 (6th Cir. 1998). If the plaintiff successfully types of rebuttals are direct attacks on the credibility of establishes a prima facie case, the burden of production the employer’s proffered motivation for firing plaintiff shifts to the defendant to articulate a non-discriminatory and, if shown, provide an evidentiary basis for what reason for its action. See id. If the defendant comes up the Supreme Court has termed “a suspicion of with such a reason, the plaintiff must then demonstrate mendacity.” by a preponderance of the evidence that the defendant’s proffered reason was a pretext for age discrimination. See The second showing, however, is of an entirely id. different ilk. There, the plaintiff admits the factual basis underlying the employer’s proffered explanation Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001). and further admits that such conduct could motivate Moreover, dismissal. The plaintiff’s attack on the credibility of the proffered explanation is, instead, an indirect one.

[i]n Manzer, a case brought under the ADEA, this Court In such cases, the plaintiff attempts to indict the explained what evidence a plaintiff must adduce in order credibility of his employer’s explanation by showing to show that an employer’s alleged legitimate reason for circumstances which tend to prove that an illegal its adverse action against the plaintiff was a mere pretext: motivation was more likely than that offered by the defendant. In other words, the plaintiff argues that the sheer weight of the circumstantial evidence of discrimination makes it “more likely than not” that the 8 employer’s explanation is a pretext, or a coverup.

WRCS filled one of the case manager positions with an individual older than Hedrick, and so, she does not co mpla in of the d enial of this position with regard to her ADEA claim.

No. 02-3898 Hedrick v. Western Reserve 25 26 Hedrick v. Western Reserve No. 02-3898 Care System, et al. Care System, et al.

Accordingly, we hold that, in order to make this type court’s summary judgment order with regard to her ADEA of rebuttal showing, the plaintiff may not rely simply claim because genuine issues of material fact exist as to upon his prima facie evidence but must, instead, whether WRCS’s proffered reason for refusing to hire her for introduce additional evidence of age discrimination. one of the vacant case manager and/or quality assurance positions was pretextual.

Manzer, 29 F.3d at 1084.

2. Conclusions

Pennington v. Western Atlas, Inc., 202 F.3d 902, 909-10 (6th Cir. 2000). We find that the district court did not err in holding that Hedrick failed to demonstrate, by a preponderance of the In the case sub judice, the district court found (and, in fact, evidence, that WRCS’s proffered reason for not hiring her for WRCS conceded) that Hedrick had established a prima facie one of the vacant case manager and/or quality assurance case of age discrimination. WRCS, then, offered a legitimate, positions was a pretext for age discrimination and, therefore, non-discriminatory reason for not hiring Hedrick for one of did not err in entering summary judgment against Hedrick on the vacant case manager positions and/or quality assurance her ADEA claim. positions, i.e., WRCS asserted that it chose better qualified candidates than Hedrick to fill the vacant positions. Finally, Contrary to her assertion otherwise, we do not believe that the district court found that Hedrick had failed to show that the district court improperly applied the Supreme Court’s WRCS’s proffered reason for not hiring Hedrick was holding in Reeves by requiring her to produce additional pretextual. evidence of discrimination beyond the evidence necessary to cast doubt on the genuineness of WRCS’s asserted reason for 1. Arguments not hiring her. A close reading of the district court’s summary judgment order reveals that the district court did not Hedrick argues that the district court’s finding regarding require Hedrick to satisfy a “pretext plus” standard; rather, the pretext was erroneous. Specifically, Hedrick contends that district court specifically stated that “[e]ven if WRCS’s the district court improperly applied the United States proffered reason were disbelieved, the evidence Hedrick Supreme Court’s holding in Reeves v. Sanderson Plumbing presents does not support an inference that age discrimination Prods., Inc., 530 U.S. 133 (2000), and that the district court was the motivating factor in WRCS’s hiring decision.” Thus, disregarded the evidence of pretext which she tendered, the district court concluded that, even though Hedrick had choosing instead to blindly accept WRCS’s subjective established a prima facie case under the ADEA, and even if determination that the successful applicants were better the district court assumed that Hedrick provided sufficient qualified than she was without conducting any analysis of that evidence to show that WRCS’s asserted justification was claim.9 Accordingly, Hedrick asks us to reverse the district false, Hedrick’s evidence was insufficient to avoid summary judgment, and the Supreme Court in Reeves anticipated just 9 Hedrick’s evidence of pretext consisted of the following: (1) the interviewers’ memories had faded, and no notes existed which revealed how they came to their decisions; (2) it is unclear who made the most qualified candidate; and (4) WRCS hired individuals younger than employment decisions; (3) her own testimony established that she was the she.

No. 02-3898 Hedrick v. Western Reserve 27 28 Hedrick v. Western Reserve No. 02-3898 Care System, et al. Care System, et al.

such a scenario: “Certainly there will be instances where, (4th Cir. 1981)(en banc)). As we have oft times repeated, “it although the plaintiff has established a prima facie case and is inappropriate for the judiciary to substitute its judgment for set forth sufficient evidence to reject the defendant’s that of management.” Smith v. Leggett Wire Co., 220 F.3d explanation, no rational factfinder could conclude that the 752, 763 (6th Cir. 2000); see Krenik v. County of Le Sueur, action was discriminatory.” Id. at 148. 47 F.3d 953, 960 (8th Cir. 1995)(holding that federal courts do not sit as a “super-personnel department”); see also Elrod As for Hedrick’s argument that the district court improperly v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. disregarded her evidence of pretext, it is true that the district 1991)(same). “Rather, our inquiry is limited to whether the court could have done a more thorough job of discussing employer gave an honest explanation of its behavior.” Harvey Hedrick’s proffered evidence, especially given the fact that v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994) WRCS’s justification for its employment decision was (quoting Elrod, 939 F.2d at 1470); see Simms v. Oklahoma ex subjective, and subjective reasons provide “ready mechanisms rel. Dep’t of Mental Health and Substance Abuse Servs., 165 for discrimination.” Grano v. Department of Dev. of City of F.3d 1321, 1330 (10th Cir. 1999)(“Our role is to prevent Columbus, 699 F.2d 836, 837 (6th Cir. 1983). However, we unlawful hiring practices, not to act as a ‘super personnel ultimately agree with the district court that Hedrick’s department’ that second guesses employers’ business evidence of pretext was insufficient to withstand summary judgments.”). judgment.

Accordingly, we find that the district court correctly entered “The isolated fact that a younger person eventually replaces summary judgment in WRCS’s favor on Hedrick’s ADEA an older employee is not enough to permit a rebuttal inference claim because she failed to demonstrate, by a preponderance that the replacement was motivated by age discrimination.” of the evidence, that WRCS’s proffered reason for not hiring Chappell v. GTE Prods. Corp., 803 F.2d 261, 267 (6th Cir. her for one of the vacant case manager and/or quality 1986)(citing LaMontagne v. American Convenience Prods., assurance positions was a pretext for age discrimination. Inc., 750 F.2d 1405, 1413 (7th Cir. 19084). Moreover, Hedrick’s subjective view of her qualifications in relation to III. CONCLUSION those of the other applicants, without more, cannot sustain a claim of discrimination. Johnson v. United States Dep’t of Accordingly, for the reasons set forth above, we AFFIRM Health and Human Servs., 30 F.3d 45, 47-48 (6th Cir. 1994); the district court’s grant of summary judgment for WRCS see Mitchell, 964 F.2d at 584 (holding that the plaintiff’s in toto. Because we affirm the district court’s grant of subjective skepticism regarding the truth of an employer’s WRCS’s motion for summary judgment, we also AFFIRM representation does not raise a triable issue as to pretext). the district court’s denial of Hedrick’s motion for partial summary judgment.

Finally, “[a]lthough the reason[] proffered by [WRCS] involve[d] subjective factors, [it was] clearly sufficient to dispel the inference of discrimination and to afford [Hedrick] a ‘full and fair opportunity’ to show pretext.” Daniels v. Board of Educ. of Ravenna City Sch. Dist., 805 F.2d 203, 209 (6th Cir. 1986)(citing Page v. Bolger, 645 F.2d 227, 228, 230