           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Williams v. London                         No. 03-5573
        ELECTRONIC CITATION: 2004 FED App. 0215P (6th Cir.)                   Utility Comm’n, et al.
                    File Name: 04a0215p.06
                                                                                            _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: Christopher D. Miller, RAMBICURE, MILLER
                    _________________                                    & PISACANO, Lexington, Kentucky, for Appellant. Charles
                                                                         D. Cole, STURGILL, TURNER, BARKER & MALONEY,
 DEWEY MICHAEL WILLIAMS,           X                                     Lexington, Kentucky, Robert L. Roark, WALTHER,
         Plaintiff-Appellant,       -                                    ROARK, GAY & TODD, Lexington, Kentucky, for
                                    -                                    Appellees. ON BRIEF: Christopher D. Miller, William C.
                                    -   No. 03-5573                      Rambicure, RAMBICURE, MILLER & PISACANO,
             v.                     -                                    Lexington, Kentucky, for Appellant. Charles D. Cole,
                                     >                                   Douglas L. McSwain, STURGILL, TURNER, BARKER &
                                    ,
 LONDON UTILITY                     -                                    MALONEY, Lexington, Kentucky, Robert L. Roark,
 COMMISSION , et al.,               -                                    LaDonna L. Koebel, WALTHER, ROARK, GAY & TODD,
         Defendants-Appellees. -                                         Lexington, Kentucky, for Appellees.
                                    -                                                       _________________
                                   N
       Appeal from the United States District Court                                             OPINION
      for the Eastern District of Kentucky at London.                                       _________________
  No. 01-00161—William O. Bertelsman, District Judge.
                                                                            BOYCE F. MARTIN, JR., Circuit Judge. Dewey Michael
                     Argued: June 10, 2004                               Williams appeals from the adverse grant of summary
                                                                         judgment on his breach-of-contract and disability-
                Decided and Filed: July 8, 2004                          discrimination claims, arising from his employment as
                                                                         superintendent of the London Utility Commission. Mr.
        Before: MARTIN and SUTTON, Circuit Judges;                       Williams alleges that the district court erred: (1) in holding
              WILLIAMS, Senior District Judge.*                          that Mr. Williams's employment agreement was void from its
                                                                         inception because the London Utility Commission exceeded
                                                                         its statutory authority by creating the contract without the
                                                                         approval of the Mayor; and (2) in holding that Mr. Williams
                                                                         did not prove that the City of London's reasons for firing him
                                                                         were pretext for purposes of the Americans with Disabilities
                                                                         Act. Finding no error, we affirm.

    *
     The Honorable Glen M. Williams, Senior United States District
Judge for the W estern D istrict of V irginia, sitting by designation.

                                  1
No. 03-5573                                  Williams v. London             3    4       Williams v. London                                 No. 03-5573
                                           Utility Comm’n, et al.                        Utility Comm’n, et al.

                                      I.                                         alleged that Mr. Williams was upset by the removal of his
                                                                                 authority and refused to solve petty employment issues on his
  The London Utility Commission of London, Kentucky,                             own. The Mayor also believed that Mr. Williams had lied to
hired Mr. Williams in late 1992. In March 1998, the Utility                      him, but he was unable to identify a specific instance in which
Commission entered into an employment contract with Mr.                          Mr. Williams lied.
Williams. At the time that the contract was signed, both the
Utility Commission and Mr. Williams knew that the contract                          On February 22, 2001, one of the London Utility
might be invalid if the Utility Commission lacked authority                      Commissioners told Mr. Williams that he must attend a
to enter into the agreement.                                                     meeting with Mayor Smith. The Commissioner told Mr.
                                                                                 Williams that he was going to be fired. At the meeting with
  The contract provided that Mr. Williams would be                               the mayor, the subject of Mr. Williams's health arose. At the
employed for a three-year term, and the contract would renew                     conclusion of the meeting, Mr. Williams and the Mayor
automatically for another three-year term unless one party                       agreed that Mr. Williams could stay until June 2001, so that
gave the other 90-days written notice of termination, which                      he could apply for disability benefits. Subsequently, Mr.
the defendants concede was not given. The contract also                          Williams sent a letter to the Mayor stating that he had a valid
provided that Mr. Williams could be removed only for cause                       contract and that the Mayor did not have the power to
by the Utility Commission. The agreement was signed by the                       terminate him. After receipt of this letter, Mayor Smith
Commissioners, but not signed by Mayor Smith.                                    terminated Mr. Williams on February 28, 2001.
  In early 2001, Mayor Smith1 decided to terminate Mr.                             Mr. Williams filed suit in the district court claiming that he
Williams. He has given various reasons for this decision,                        suffered disability discrimination and age discrimination.3
including: Mr. Williams's inability to deal with personnel                       Mr. Williams also brought due process claims under
problems on his own, Mr. Williams's inability to get along                       42 U.S.C. § 1983 and state-law claims for breach of contract,
with customers and the public, and a complaint by Ken                            intentional interference with contractual rights, intentional
Wilson, a former employee.2 Mayor Smith also perceived                           infliction of emotional distress, and breach of the implied
that after the city passed Ordinance 981 (discussed below),                      covenant of good faith and fair dealing. The district court
Mr. Williams became obstinate and difficult. Mayor Smith                         granted summary judgment to defendants on all claims. Mr.
                                                                                 Williams appeals the section 1983 and state-law contract
                                                                                 claims and the disability-discrimination claim. He does not
    1
        Mayor Smith was elected in 1994.
                                                                                 appeal the intentional-infliction-of-emotional-distress claim.
    2
      The district court states that Mayor Smith was mo tivated, at least in
part, by Ken Wilson's comp laint. However, the deposition of Mayor
Smith is directly contrary to this. Mayor Smith clearly states that this did
not motivate his decisio n to term inate Mr. W illiams. In fact, Ma yor Sm ith
believed that the letter of reprimand that was p laced in Mr. W illiams's file       3
was enough to de al with the situation. At the summary judgment stage,                 Although the age-discrim ination c laim was alleged in the complaint,
the district court is bound to view the facts in the light most favorable to     Mr. W illiams did not contest summary judgment on this claim and does
the non-mo ving party, in this case Mr. W illiams.                               not appeal this issue.
No. 03-5573                          Williams v. London     5    6    Williams v. London                          No. 03-5573
                                   Utility Comm’n, et al.             Utility Comm’n, et al.

                             II.                                 or malfeasance in office." As noted by the district court,
                                                                 Ordinance 344 appears as if it were organized to meet the
  This Court reviews the grant of summary judgment de            strictures of section 96.530, rather than section 96.350.
novo. Lake v. Metropolitan Life Ins. Co., 73 F.3d 1372, 1376
(6th Cir. 1996).                                                   In 1980, the Kentucky legislature passed the "Home Rule
                                                                 Statutes." Section 83A.130(9) of the Kentucky Revised
  We must first determine whether the London Utility             Statutes provides that "[t]he mayor shall be the appointing
Commission had the power to enter into the contract with Mr.     authority with the power to appoint and remove all city
Williams. Thus, we must examine the applicable Kentucky          employees . . . except as tenure and terms of employment are
constitutional and statutory provisions, together with the       protected by statute, ordinance or contract." Furthermore,
ordinances of the City of London.                                section 83A.020 provides that all ordinances which conflict
                                                                 with the Home Rule Statutes are void.
   In 1891, section 162 of the Kentucky Constitution was
adopted, which provides that "[n]o county, city, town or other     The London Utility Commission hired Mr. Williams in
municipality shall ever be authorized or permitted to pay any    1992, and the parties entered into the employment contract in
claim created against it, under any agreement or contract        question in 1998. In December 2000, the City of London
made without the express authorization or law, and all such      passed Ordinance 981, which repealed Ordinance 344 and
unauthorized agreements or contracts shall be null and void."    reorganized the Utility Commission to align with the Home
Subsequently, in 1942, the Kentucky legislature passed           Rule Statutes. Ordinance 981 states that the Utility
section 96.530 of the Kentucky Revised Statutes, which           Commission shall recommend to the mayor a person to
allows cities to create and operate light, heat, and power       employ as superintendent. Acknowledging the Home Rule
plants. This statute allows for the establishment of a utility   Statutes, Ordinance 981 also states that the "[m]ayor shall
commission as a separate corporate body with the power to        make all decisions relating to employment[, including] hiring,
contract and the power to manage all employment issues. As       lay-offs, terminations, and other similar decisions relating to
the district court noted, this statute specifically does not     employment." Section 9 of Ordinance 981 states that the
include water commissions. In fact, in 1942, the Kentucky        "Commission shall be bound under the terms of any previous
legislature also passed section 96.350 of the Kentucky           contracts and/or agreements made and entered into by or on
Revised Statutes, which allows certain cities, including the     behalf of the Commission that exist at the time of enactment."
City of London, to operate waterworks facilities. This statute
does not provide for a commission organized as a separate          We agree with the district court that the contract was void
corporate body with control of its own employees as does         from its inception. Mr. Williams was hired after the passage
section 96.530.                                                  of the Home Rule Statutes, which indicate that only the
                                                                 mayor has the power to hire and fire city employees.
  In 1948, the City of London passed Ordinance 344, which        According to the Home Rule Statutes, any ordinances in
created the Utility Commission for water and sewers. This        conflict with the Home Rule Statutes are void. Thus,
ordinance gave the Utility Commission the authority to hire      Ordinance 344 was void, at least in part, upon the passage of
a project superintendent, who could be removed by the            the Home Rule Statutes. Because Mr. Williams was hired
Commission "for inefficiency, neglect of duty, misfeasance       after the passage of the Home Rule Statutes, Ordinance 344
No. 03-5573                           Williams v. London     7    8      Williams v. London                          No. 03-5573
                                    Utility Comm’n, et al.               Utility Comm’n, et al.

was void, and the Commission did not have the power to            shifts back to the plaintiff to prove that the stated reasons are
make this contract; only the Mayor held such power.               pretext. See Martin v. Barnesville Exempted Vill. Sch. Dist.
                                                                  Bd. of Educ., 209 F.3d 931, 934 (6th Cir. 2000).
   The London Utility Commission was not authorized by
statute to operate independently. Mr. Williams argues               The district court assumed without deciding that Mr.
extensively that, as a matter of agency law, the Utility          Williams could prove a prima facie case of discrimination and
Commission, and not the City of London, was his employer.         that Mayor Smith could demonstrate legitimate non-
We do not find his arguments persuasive. Although factually       discriminatory reasons for the discharge. However, the
it appears that the Utility Commission controlled Mr.             district court concluded that Mr. Williams was unable to
Williams's activities and acted as his employer, if the Utility   prove that the Mayor's reasons were pretext. We do not have
Commission does not have the statutory power to employ Mr.        to reach the issue of pretext to resolve this claim because we
Williams in view of section 83A.130(9) of the Kentucky            do not believe that Mr. Williams can prove a prima facie case
Revised Statutes, then he must be an employee of the City of      of disability discrimination.
London. Because Mayor Smith has ultimate authority over
city employees, Mayor Smith had the power to terminate Mr.          A prima facie case of disability discrimination requires that
Williams.                                                         the plaintiff prove he was qualified to perform his job
                                                                  requirements with or without reasonable accommodation.
  If Mr. Williams has no contract, he is an employee-at-will,     Mr. Williams's employment was terminated on February 28,
has no property interest in his employment and can be fired       2001, and Mr. Williams applied for disability benefits under
for any reason or no reason at all (except for a discriminatory   the Kentucky Retirement System on March 1, 2001, claiming
reason). Because we hold that Mr. Williams's contract was         that he was totally disabled. It is incongruous that Mr.
void and no party raises the issue of ratification of the         Williams was able to perform his job requirements when he
contract, we think that Mr. Williams was an employee-at-will      was terminated on February 28, but he was unable to perform
and that his termination was proper. Therefore, we affirm the     the same work as of March 1.
district court's grant of summary judgment to defendants on
Mr. Williams's contract-related and due process claims.               The Supreme Court has explained that

                             III.                                     [a]n ADA plaintiff bears the burden of proving that she
                                                                      is a "qualified individual with a disability" — that is, a
  A prima facie case of disability discrimination requires the        person "who with or without reasonable accommodation,
plaintiff to prove that: "(1) he is an individual with a              can perform the essential functions" of her job.
disability; (2) he is 'otherwise qualified' to perform the job        42 U.S.C. § 12111(8). And a plaintiff's sworn assertion
requirements, with or without reasonable accommodations;              in an application for disability benefits that she is, for
and (3) he was discharged solely by reason of his handicap."          example, "unable to work" will appear to negate an
Cotter v. Ajilon Servs., 287 F.3d 593, 598 (6th Cir. 2002). If        essential element of her ADA case — at least if she does
the plaintiff can prove a prima facie case, then the burden           not offer a sufficient explanation. For that reason, we
shifts to the defendant to articulate a legitimate, non-              hold that an ADA plaintiff cannot simply ignore the
discriminatory reason for the termination. Then, the burden           apparent contradiction that arises out of the earlier []
No. 03-5573                         Williams v. London        9    10   Williams v. London                      No. 03-5573
                                  Utility Comm’n, et al.                Utility Comm’n, et al.

  disability claim. Rather, she must proffer a sufficient            For the reasons stated herein, we AFFIRM the judgment of
  explanation.                                                     the district court.
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806
(1999). This means that in order to survive a motion for
summary judgment, the plaintiff's "explanation must be
sufficient to warrant a reasonable juror's concluding that . . .
the plaintiff could nonetheless 'perform the essential
functions' of her job, with or without 'reasonable
accommodation.' " Id. at 807.
  Mr. Williams was terminated on February 28, and he
applied for disability benefits the very next day. Mr.
Williams subsequently filed suit, alleging that he was able to
perform his job requirements as of the date of his termination.
Mr. Williams has failed to offer sufficient evidence to explain
these contradictory statements. Mr. Williams argues that the
affidavit of Bobby Turner, M.D. explains the contradiction.
This affidavit states that "Mr. Williams' termination of
employment at or near the end of February 2001 had a
devastating effect upon him emotionally, which, in my
opinion, worsened his physical conditions." Furthermore, Dr.
Turner opined that "the termination and its emotionally
devastating effects upon Mr. Williams rendered him unable
to work when combined with his pre-existing physical
conditions." Accepting this statement as true, we do not think
that it provides a sufficient explanation for the contradictory
statements. Dr. Turner's statement was signed on April 25,
2001. While Mr. Williams's health may have declined to the
point where he became unable to work during this two-month
period, he provides no explanation for how his health
declined to the point of being unable to work on March 1,
2001, the date on which he filed for disability benefits and
one day after his termination. Because we hold that Mr.
Williams’s explanation of these contradictory statements was
insufficient, we affirm the district court's grant of summary
judgment.
