                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0576n.06

                                            No. 14-4145

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

MICHAEL ARTHUR,                                            )                  FILED
                                                           )            Aug 14, 2015
       Plaintiff-Appellant,                                )        DEBORAH S. HUNT, Clerk
                                                           )
v.                                                         )       ON APPEAL FROM THE
                                                           )       UNITED STATES DISTRICT
AMERICAN SHOWA, INC.,                                      )       COURT FOR THE SOUTHERN
                                                           )       DISTRICT OF OHIO
       Defendant-Appellee.                                 )
                                                           )
                                                           )



BEFORE: GIBBONS and COOK, Circuit Judges; MURPHY, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff Michael Arthur appeals the district

court’s grant of summary judgment in favor of his former employer, American Showa, Inc., on

his claims brought under the Americans with Disabilities Act as amended (ADA) and Ohio law

for failure to accommodate his disability and discriminatory discharge. Because Arthur cannot

establish the prima facie case for either claim, we affirm the district court’s decision.

                                                  I.

       Arthur began working as a full-time production associate for American Showa, Inc.

(“ASI”) in March of 1999. Prior to his employment at ASI, Arthur was diagnosed with spina

bifida occulta. According to the Mayo Clinic, spina bifida occulta is a birth defect that causes

malformation of the spinal cord.


       *
          The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern
District of Michigan, sitting by designation.
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No. 14-4145, Arthur v. American Showa, Inc.


        In early 2002, Arthur had surgery to fuse some of his spinal discs. Despite his surgery,

he continued to have back problems and in 2003 he requested time off under the Family and

Medical Leave Act.       In 2004, Arthur requested that ASI accommodate his condition by

reassigning him to a job that did not require bending or twisting. ASI sent Arthur to have an

Independent Medical Examination (IME) performed by Dr. David Randolph. Dr. Randolph

found that “it is unlikely that Mr. Arthur will ever be free of problems with his low [sic]

back . . . [He] will likely have chronic low back pain and require chronic and permanent

restrictions with respect to work activities. . . . It is highly unlikely that he will ever be able to

return to unrestricted work activities.” Dr. Randolph recommended a 20-pound lifting restriction

and stated that bending, twisting and stooping should be limited to an occasional and non-

repetitive basis.

        To accommodate the restrictions imposed by Dr. Randolph, ASI reassigned Arthur to a

calibration associate position in the quality department. Arthur worked in this position until

2011. Arthur does not allege that ASI discriminated against him or failed to accommodate him

prior to his termination in 2011.

        In January of 2009, due to an economic downturn, ASI embarked on a reduction in its

workforce. From 2009 to 2011, ASI released 100 temporary employees and over 50 full-time

employees. In late 2011, department managers were informed that due to budgeting constraints

additional positions would have to be eliminated. Greg Harvey, Arthur’s manager, used a matrix

of objective criteria to determine who would be eliminated. Because Arthur was the least senior

in the department and could be released with the least amount of disruption, Harvey ultimately

selected Arthur for layoff.




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No. 14-4145, Arthur v. American Showa, Inc.


       On December 2, 2011, Arthur was informed of his termination pursuant to the reduction

in force. Following Arthur’s termination, Harvey learned of another employee who was laid off

but was offered a manufacturing position because he used to work on the manufacturing floor.

Since Arthur had also previously worked on the manufacturing floor, Harvey thought that, in the

interests of fairness and consistency, Arthur should be presented with the same offer.

       On December 5, 2011, Ginny Whiting, ASI’s HR manager at the Blanchester plant,

called Arthur to ask if he would be interested in a machining position on the rack line. Arthur

asked Whiting why he could not bump one of the assembly associates who recently moved to

machining and Whiting said it was not allowed. According to Whiting’s notes taken during the

conversation, Whiting then asked Arthur if he would be able to take a machining position with or

without accommodation, to which Arthur responded “maybe.” The notes also suggest that

Arthur stated that his physician made his restrictions more restrictive. The conversation ended

with Arthur saying he would think about the machining position. On December 8 and 9, Whiting

called Arthur to follow up on his decision regarding the machining position and left voicemail

messages on Arthur’s cellphone. On December 9, Arthur met with Whiting at ASI and informed

her that he decided not to accept the machining position. Following that meeting, Whiting sent

Arthur a letter detailing the timeline of their discussions and reiterating that his job at ASI ended

on December 2, 2011.

       Arthur filed a charge of disability discrimination with the EEOC in July 2012. Following

receipt of his right-to-sue notice, Arthur filed his complaint against ASI in the district court. He

alleged that ASI violated the ADA and Ohio law by refusing to accommodate him and

terminating him on account of his disability. ASI filed a motion for summary judgment and the

district court granted that motion. Arthur’s timely appeal followed.



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No. 14-4145, Arthur v. American Showa, Inc.


                                                        II.

        We review de novo a district court’s grant of summary judgment. Cehrs v. Ne. Ohio

Alzheimer’s Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). Summary judgment is proper if

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter

of law. Id. We view the facts, and the reasonable inferences to be drawn from those facts, in the

light most favorable to the non-moving party, and we do not weigh the evidence or make

credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Keith v.

Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013).

        The ADA makes it unlawful for an employer to “discriminate against a qualified

individual on the basis of disability.”             42 U.S.C. § 12112(a).            Arthur claims that ASI

discriminated against him by failing to provide a reasonable accommodation to allow him to

continue working in a new position after his layoff and by terminating his employment.

                                                        A.

        Arthur’s claim of discriminatory discharge in violation of the ADA and Ohio law lacks

sufficient evidentiary support to survive summary judgment.1 In the absence of direct evidence

of discrimination, courts analyze ADA discrimination claims following the familiar burden-

shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Whitfield v.

Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). To prove a prima facie case of disability

discrimination, Arthur must show that (1) he is disabled; (2) he is otherwise qualified for the

position with or without reasonable accommodation; (3) he suffered an adverse employment

decision; (4) ASI knew or had reason to know of his disability; and (5) Arthur was replaced or

his position remained open. Id. Under the ADA, the plaintiff’s disability must be a “but for”


        1
          As the elements of a disability claim are essentially the same under the ADA and the Ohio statute, we will
address them together. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004).

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No. 14-4145, Arthur v. American Showa, Inc.


cause of the adverse employment action. Demyanovich v. Cadon Plating & Coatings, L.L.C.,

747 F.3d 419, 433 (6th Cir. 2014).

        The prima facie framework is modified if an employee is discharged due to a reduction in

force. In such a case, the plaintiff is not required to demonstrate the fifth prong of the prima

facie framework because he is not replaced. See Godfredson v. Hess & Clark, Inc., 173 F.3d

365, 371 (6th Cir. 1999). Instead, the plaintiff must introduce “additional direct, circumstantial,

or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge

for impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990), cert.

denied, 498 U.S. 878 (1990); see also Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178

F.3d 414, 420–21 (6th Cir. 1999).

        ASI acknowledges that Arthur satisfies the second and third elements of his prima facie

case. However, ASI argues that (1) Arthur does not meet the statute’s meaning of disabled; (2)

Harvey—the sole decisionmaker concerning Arthur’s termination—was unaware of Arthur’s

alleged disability; and (3) Arthur cannot establish that ASI replaced him or held his position

open.

        Due to his spina bifida occulta, Arthur has had multiple surgeries. The collective impact

of these surgeries has left Arthur substantially limited in several major life activities, including

bending and lifting. See 42 U.S.C. § 12102(2)(A). These restrictions were not of a temporary

nature, but were found by Dr. Randolph to be chronic and permanent. Thus, echoing the district

court, we analyze Arthur’s prima facie case under the assumption that Arthur is disabled within

the meaning of the ADA.

        Nevertheless, Arthur’s prima facie case fails at the fourth step. While it is clear that ASI

knew of Arthur’s restrictions, and therefore his disability, “an employee cannot be considered to



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No. 14-4145, Arthur v. American Showa, Inc.


have been fired ‘on the basis of disability’ unless the individual decision-maker who fired the

individual had knowledge of that disability.” Nilles v. Givaudan Flavors Corp., 521 F. App’x

364, 368 (6th Cir. 2013) (collecting cases). In this case, because it is undisputed that Harvey was

the sole decisionmaker regarding the reduction-in-force job eliminations within his department,

the prima facie case requires that Harvey knew of Arthur’s disability. Harvey, although aware

that Arthur had “restrictions,” was wholly unaware of the specifics of his restrictions or why

these restrictions were imposed.

       Arthur does not dispute that Harvey was ignorant of Arthur’s disability. Rather, Arthur

counters that his employment did not end until December 9, 2011, when the final termination

letter was written by Whiting. Therefore, Arthur argues, it was Whiting and not Harvey who

fired him, and Whiting knew that he was disabled prior terminating him.

       This argument is unavailing. Arthur was unambiguously terminated on December 2,

2011. The relevant letter states “I regret to inform you that effective today, 12/02/2011, your

position is being eliminated in accordance with American Showa, Inc.’s reduction in force

process.” (DE 20-1, Letter, Page ID 122.) Arthur’s termination was not revoked merely because

Whiting asked Arthur whether he would be interested in a machining position three days later.

Indeed, as evidenced by the letter detailing the back-and-forth discussion between Whiting and

Arthur, Arthur declined the machining area position.            “Per [this] decision, [Arthur’s]

employment with [ASI] is ending effective 12/02/2011 due to job elimination as part of

American Showa’s reduction in force process.” (Id.)

       Despite Arthur’s attempt to characterize the December 9, 2011 letter as the final

termination letter, the evidence demonstrates that Arthur was terminated on December 2, 2011.

The decision to terminate Arthur was made by Harvey, who undisputedly knew nothing about



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No. 14-4145, Arthur v. American Showa, Inc.


Arthur’s disability. Therefore, Arthur is unable to establish the fourth element of his prima facie

case.

        Arthur further argues that ASI’s failure to transfer him in accordance with ASI policies

before he was notified of his layoff on December 2, 2011, serves as circumstantial evidence of

discrimination, fulfilling the fifth prong of the prima facie framework. Specifically, Arthur

maintains that it is ASI’s policy to offer hourly employees a position of a similar nature and pay

before notifying them of a layoff. Indeed, LoAnn Burt, the top human resources official for the

relevant factories did state that it was “typical” for the company to do so. While a deviation

from, or selective enforcement of, a policy could serve as circumstantial evidence of

discrimination, see e.g., Wells v. New Cherokee Corp., 58 F.3d 233, 236–37 (6th Cir. 1995), it is

not necessary to determine whether or not ASI’s failure to transfer Arthur prior to his layoff

amounted to circumstantial evidence of discrimination in the present case. As discussed above,

Arthur is unable to prove that Harvey—the final decisionmaker in Arthur’s termination—knew

of Arthur’s disability and is therefore unable to establish the prima facie case.2

        Arthur additionally contends that the district court erred by finding that he failed to

request a reasonable accommodation. Thus, the issues raised on appeal are whether Arthur

requested a reasonable accommodation, and if so, whether ASI failed to engage in the interactive

process.3




        2
           Because we believe that Arthur is unable to meet his burden under the prima facie framework, we find it
unnecessary to address Arthur’s allegations of pretext due to ASI’s alleged lack of an apparent objective reduction-
in-force plan.
        3
            ASI briefly argues that it had no duty under the ADA to accommodate Arthur since Arthur was
technically no longer an employee of ASI. ASI cites to no legal authority to support this position and the Court can
find none. On the contrary, the Supreme Court has determined that an employer’s failure to rehire is potentially
actionable under the ADA. See Raytheon Co. v. Hernandez, 540 U.S. 44, 48–52 (2003).


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No. 14-4145, Arthur v. American Showa, Inc.


                                                        i.

        To succeed on his failure-to-accommodate claim Arthur must show: (1) he is disabled;

(2) he is otherwise qualified for the position, with or without reasonable accommodation; (3) ASI

knew or had reason to know of his disability; (4) he requested an accommodation; and (5) the

employer failed to provide the necessary accommodation. Judge v. Landscape Forms, Inc.,

592 F. App’x 403, 407 (6th Cir. 2014).4

        While the ADA requires employers to reasonably accommodate their disabled

employees, “it does not endow all disabled persons with a job . . . of their choosing.” EEOC v.

Ford Motor Co., 782 F.3d 753, 757 (6th Cir. 2015) (en banc). The plaintiff bears the “burden of

proposing an accommodation and showing that that accommodation is objectively reasonable.”

Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996), abrogated on other

grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc).

Reasonable accommodations do not obligate employers to create new jobs or displace existing

employees from their positions. Thompson v. E.I. DuPont deNemours & Co., 70 F. App’x. 332,

336 (6th Cir. 2003). In this case, Arthur believes it would have been reasonable under the

circumstances for him to trade positions with another employee because ASI retained the right to

transfer employees at will. Though a transfer or reassignment to another position is recognized

as one type of reasonable accommodation, the ADA does not refer to merely any position, but “a

vacant position.” 42 U.S.C. § 12111(9)(B) (emphasis added). Here, none of the positions

amenable to Arthur’s restrictions were vacant at the time he was offered a position.




        4
           As already discussed, for the purposes of summary judgment Arthur has demonstrated that he has a
disability. Moreover, ASI does not dispute the second or third element. Thus the analysis will focus on whether he
requested a reasonable accommodation.


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No. 14-4145, Arthur v. American Showa, Inc.


       To circumvent this hurdle, Arthur argues that the facts of this case present those “special

circumstances” referred to in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405 (2002). In

Barnett, a U.S. Airways baggage handler injured his back and requested transfer to a mailroom

position that recently had become available. Id. at 394. US Airways denied his request because,

under its seniority policy, the company was required to award the position to a more senior

employee. Id. at 395. The Supreme Court found that, despite the seniority system, a plaintiff

may show that “special circumstances warrant a finding that . . . the requested ‘accommodation’

is ‘reasonable’ on the particular facts.” Id. at 405. For example, a plaintiff may show that the

employer frequently exercises its right to change the seniority system unilaterally. Id.

       In this case, Arthur views the special circumstances as follows: (1) on December 5, 2011,

ASI transferred over 50 production associates to machining positions at Arthur’s plant after

shutting down one of the production assembly lines; and (2) on that very same day Whiting

offered Arthur a position on the rack line. Arthur contends that because these 50-plus employees

all received “new jobs,” Arthur’s reassignment to a position within his restrictions would not

have resulted in the termination, removal or displacement of any employee. Therefore, it would

not have placed an undue hardship on ASI.

       Barnett, however, is ill-suited to the present case. Though the Sixth Circuit has yet to

expound upon the Supreme Court’s discussion of “special circumstances,” one thing is clear:

Barnett dealt with the interaction of employers’ seniority systems and the ADA in the context of

vacant positions. See id. Here, it is undisputed that the positions Arthur desired were already

occupied. At the time Arthur spoke with Whiting on December 5, 2011 about his job offer for a

position on the rack line, most if not all of the other positions in machining were already filled by

the transferred associates. Arthur even acknowledged in his deposition that in order to be placed



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No. 14-4145, Arthur v. American Showa, Inc.


in one of the jobs he could do—ranking room, forklift and analysis associates—an employee

would have to be transferred to another position.

       The ADA “does not require an employer to reassign an employee to a position that is not

vacant.” Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997). This is logical; disparities in

performance between employees and the time lost amidst retraining make obligating an

employer to trade employees’ positions an unreasonable accommodation. Arthur has failed to

demonstrate that any positions within his restrictions were vacant. Indeed, the record evidence

indicates that there were no positions available that could accommodate his disability. Thus,

Arthur’s requested accommodation was objectively unreasonable.

       Arthur further contends that the district court incorrectly refused to consider a portion of

Arthur’s declaration.   In his declaration filed in opposition to ASI’s motion for summary

judgment, Arthur contends that during the conversation that took place on December 5th,

Whiting told Arthur that he “would have to give up [his] restrictions.” (DE 27-1, Arthur Decl.,

Page ID 335.) The district court declined to consider this statement because the court determined

it an attempt to bolster Arthur’s deposition testimony. While the district court’s decision was in

error, it does not change the ultimate outcome of the case.

       “A party may not create a factual issue by filing an affidavit, after a motion for summary

judgment has been made, which contradicts [his] earlier deposition testimony.” Reid v. Sears,

Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); see also Fair v. Prime Sec. Distrib., Inc.,

134 F.3d 371, *2 (6th Cir. 1997) (per curiam) unpublished table decision) (“[W]e do not allow

parties who have been deposed to create material fact issues simply by submitting later

contradictory affidavits[.]”).    Although Arthur’s deposition testimony never mentioned

Whiting’s alleged statement that he would have to give up his restrictions, Arthur was never



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No. 14-4145, Arthur v. American Showa, Inc.


asked to explain what was said in the December 5 conversation. Even Whiting’s testimony does

not contradict Arthur’s affidavit. Whiting acknowledged that the contents of her note regarding

her December 5 conversation with Arthur would not include “everything that could have been

said that day.” (DE 20, Whiting Dep., Page ID 88.)

       In any event, even assuming that Whiting told Arthur that the rack line was the only job

available and he would need to waive his restrictions to work it, Arthur’s failure-to-

accommodate claim still fails. Such a fact only bolsters ASI’s position that there were no vacant

jobs available that could accommodate Arthur’s restrictions. It also reinforces ASI’s argument

that Arthur wanted the opportunity to replace, or “bump,” an existing employee and reassign said

employee to a different position.

                                                ii.

       Arthur also argues that ASI failed to engage in the interactive process in good faith in

violation of the ADA. Arthur seeks to gloss over his own responsibility to request a reasonable

accommodation. He places the burden on ASI to engage in the interactive process because

Whiting knew of Arthur’s restrictions. However, Arthur never triggered such duty because of

his failure to request a reasonable accommodation in the first place.

       The ADA’s regulations indicate that, “[t]o determine the appropriate reasonable

accommodation [for a given employee,] it may be necessary for the [employer] to initiate an

informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o)(3). The purpose of

the interactive process is to “identify the precise limitations resulting from the [employee’s]

disability and potential reasonable accommodations that could overcome those limitations.” Id.

However, if the employee never requests a reasonable accommodation the employer’s duty to

engage in the interactive process is never triggered. See Lockard v. Gen. Motors Corp., 52 F.



                                                11
No. 14-4145, Arthur v. American Showa, Inc.


App’x 782, 788 (6th Cir. 2002). Indeed, a court need not consider whether there has been a

failure to engage in the interactive process when a plaintiff fails to meet his burden of showing

that a position to accommodate him was vacant. See Kleiber v. Honda of Am. Mfg., Inc., 420 F.

Supp. 2d 809, 826 (S.D. Ohio 2006), aff’d, 485 F.3d 862 (6th Cir. 2007); see also Ozlowski v.

Henderson, 237 F.3d 837, 840 (7th Cir. 2001).            As already discussed, Arthur’s requested

accommodation was unreasonable because the positions he could perform were occupied, thus

ASI’s duty never arose.

          Even assuming ASI’s duty to engage in the interactive process was triggered, Arthur’s

claim still fails. “[T]he employer fails to participate in the interactive process only if, among

other things, the employee can demonstrate that ‘the employee could have been reasonably

accommodated but for the employer’s lack of good faith.’” Breitfelder v. Leis, 151 F. App’x

379, 386 (6th Cir. 2005) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 320 (3d Cir.

1999)).     Arthur has failed to sufficiently present another way ASI could have reasonably

accommodated him. Moreover, once ASI indicated to Arthur that his requested accommodation

would result in the bumping of other employees, i.e. undue hardship, ASI is not further “required

to propose a counter accommodation in order to participate in the interactive process in good

faith.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010).

                                                  III.

          For the foregoing reasons, we affirm the district court’s decision.




                                                   12
