                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0754n.06

                                            No. 09-4360                                FILED
                                                                                    Dec 13, 2010
                            UNITED STATES COURT OF APPEALS
                                                                              LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


KAREN SHOEMAKER,                                  )
                                                  )
          Plaintiff-Appellant,                    )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
E.I. DUPONT          DE    NEMOURS        AND     )    SOUTHERN DISTRICT OF OHIO
COMPANY,                                          )
                                                  )
          Defendant-Appellee.                     )



          Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*

          SUTTON, Circuit Judge. Karen Shoemaker challenges the district court’s decision rejecting

her disability discrimination claims as a matter of law. Because she does not challenge the grounds

for decision presented and rejected below, but presents only arguments never raised below, we

affirm.

                                                  I.

          Karen Sue Shoemaker began working at E.I. DuPont de Nemours & Co. in 1992. In her last

position there, she worked on an assembly line that manufactured film.

          In 2001, doctors diagnosed Shoemaker’s mother with cancer, and Shoemaker became the

primary caregiver for both of her parents. DuPont allowed Shoemaker to take leave under the



          *
         The Honorable William O. Bertelsman, United States Senior District Judge for the Eastern
District of Kentucky, sitting by designation.
No. 09-4360
Shoemaker v. E.I. DuPont de Nemours & Co.

Family and Medical Leave Act (FMLA) to care for her parents. See Pub. L. No. 103-3, 107 Stat. 6

(1993).

          Three years later, Shoemaker’s mother passed away. Shoemaker took the news hard.

Doctors diagnosed her with depression and anxiety disorder and prescribed her medication. DuPont

again allowed Shoemaker to take FMLA leave.

          Shoemaker also began to suffer from a sleep disorder. She had at least one car accident

caused by falling asleep at the wheel. She also began falling asleep at work, which caused DuPont

to place her on probation in June 2005. A pulmonologist diagnosed Shoemaker with narcolepsy and

prescribed her medication for the problem.

          In August 2005, Shoemaker’s father passed away, after which Shoemaker’s depression and

anxiety worsened. She sought treatment from a psychiatrist and a mental health counselor. DuPont

allowed Shoemaker to take FMLA leave a third time.

          In January 2006, Shoemaker met with DuPont officials to create a plan for her to return to

work. They agreed that she would return to work on February 1, 2006, and that she would take on

shortened shifts at first, then work up to a full schedule. The plan required Shoemaker to qualify for

each level of the line operator position again as well as to undergo training for the changes that

occurred while she was on leave. Shoemaker failed the first test, prompting DuPont to discharge her

in April 2006.

          Shoemaker sued DuPont in state court, claiming violations of Ohio disability discrimination

law. DuPont removed the action to federal court on the basis of diversity jurisdiction. See 28 U.S.C.

§ 1332. Shoemaker amended her complaint, adding claims under the federal Americans with

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Shoemaker v. E.I. DuPont de Nemours & Co.

Disabilities Act (ADA). See Pub. L. No. 101-336, 104 Stat. 331 (1990). Concluding that Shoemaker

had not established a prima facie case of disability discrimination, the district court granted DuPont’s

motion for summary judgment.

                                                  II.

        As this case comes to the court, both parties assume that Ohio disability discrimination law

parallels the requirements of the ADA, and we have embraced this assumption for the purpose of

resolving this appeal. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004).

We give a fresh look to the district court’s summary-judgment decision, and we draw all reasonable

factual inferences in favor of Shoemaker, the opponent of the motion. Id. at 417.

        In the absence of direct evidence of discrimination, the burden-shifting framework of

McDonnell Douglas governs a claim of disability discrimination. Monette v. Elec. Data Sys. Corp.,

90 F.3d 1173, 1184–85 (6th Cir. 1996); see McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–04 (1973). That familiar framework works as follows: The plaintiff must first establish a prima

facie case of discrimination. Monette, 90 F.3d at 1186. If she satisfies that obligation, the burden

shifts to the employer to offer a “legitimate, nondiscriminatory” reason for its action. Id. at 1179,

1186. If the employer does so, the burden shifts back to the plaintiff to establish that the employer’s

proffered reason is merely a pretext for unlawful discrimination. Id. at 1186–87.

        As to the first requirement, Shoemaker bears the burden of showing that she is a person with

a disability. Id. at 1185–86. That can be done in one of three ways: (1) by showing that she has an

impairment that substantially limits her in one or more major life activities (actually disabled), (2)

by showing that she has a record of such an impairment (record of a disability) or (3) by showing that

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Shoemaker v. E.I. DuPont de Nemours & Co.

she is regarded by her employer as having such an impairment (regarded as disabled). 42 U.S.C.

§ 12102(1); Kiphart v. Saturn Corp., 251 F.3d 573, 582 (6th Cir. 2001).

       In responding to the motion for summary judgment in the district court, Shoemaker argued

only that she was actually disabled and that she was regarded as disabled. The district court

considered these two arguments, and it rejected each of them.

       On appeal Shoemaker claims only that she has a record of disability and makes no mention

of the arguments she raised in the district court. Unluckily for Shoemaker, DuPont noticed, pointing

out that Shoemaker presents the “record of disability” theory “[f]or the first time . . . on appeal.”

DuPont Br. at 20.

       DuPont is correct. Shoemaker forfeited her “record of disability” argument by failing to raise

it below. See Barner v. Pilkington N. Am., Inc., 399 F.3d 745, 749 (6th Cir. 2005). And she has

abandoned the arguments she made before the district court by failing to raise them here. See Doe

v. Salvation Army in U.S., 531 F.3d 355, 357 (6th Cir. 2008). Shoemaker is represented by counsel

before this court, just as she was in the district court, leaving us no handhold for construing her

arguments broadly, as we sometimes do when it comes to pro se litigants. Cf. Estelle v. Gamble, 429

U.S. 97, 106 (1976). Even the most generous reading of her briefs reveals no arguments challenging

the reasoning of the district court decision.

       Not only has Shoemaker failed to challenge the grounds for decision below, but her claim

is meritless to boot. Even if we grant for the sake of argument the possibility that Shoemaker could

meet the definition of disability, DuPont offered a legitimate, nondiscriminatory reason for

Shoemaker’s discharge—namely, that Shoemaker failed a test she agreed to take as part of her

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Shoemaker v. E.I. DuPont de Nemours & Co.

return-to-work plan. Shoemaker offers no plausible theory of pretext. Her central argument is that

DuPont gave her one chance to pass the test, while the company gave other workers three chances.

But, as Shoemaker acknowledged during oral argument, those workers took the test to get a

promotion, not as part of an agreed-upon return-to-work plan. Because Shoemaker and those

workers were not similarly situated and because she offers no other plausible theory by which a jury

could say that DuPont’s named nondiscriminatory reason for the discharge was pretextual, her claim

fails on the merits as well.

                                                III.

        For these reasons, we affirm.




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