                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0089n.06

                                            No. 09-4355                                     FILED
                                                                                        Feb 10, 2011
                            UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


KEVIN EVERSON,                              )
                                            )
     Plaintiff-Appellant,                   )
                                            )
v.                                          )                   On Appeal from the United States
                                            )                   District Court for the Southern
SIMON LEIS, Hamilton County Sheriff; Deputy )                   District of Ohio
ALBERT WITTICH; JOHN DOE, Sherriff Deputy; )
JOHN DOE, Employee of Northgate Mall,       )
                                            )
     Defendants-Appellees.                  )




Before:          BOGGS, MOORE, and SUTTON, Circuit Judges.

                 BOGGS, Circuit Judge. Shortly after suffering an epileptic seizure at a mall, Kevin

Everson was restrained, placed under arrest, and charged with criminal offenses. Those charges were

ultimately dropped. In district court, Everson brought claims against defendants under Title II of the

Americans with Disabilities Act (“ADA”).               Everson alleges that defendants intentionally

discriminated against him in the manner they responded to his seizure. The district court granted

summary judgment in favor of defendants, and we affirm.

                                                   I

          On April 19, 2003, Everson experienced an epileptic seizure in the bathroom at Northgate

Mall in Hamilton County, Ohio. Appellant’s Br. at 3. Shortly thereafter, Hamilton County Deputy

Sheriff Albert Wittich received a call requesting assistance for a person at the mall having a seizure.
No. 09-4355
Everson v. Simon Leis, et al.

When Wittich arrived, two EMS employees and two other deputies, responding to the same call,

were already at the scene.

       Everson remembers that he was approached by individuals in uniform after exiting the

bathroom, and that he asked them whether he could sit down. Everson also remembers being on the

ground, although he otherwise lacks any recollection of his interaction with these uniformed

individuals until after his epsiode ended with him restrained on a cot. Everson v. Leis, 556 F.3d 484,

489-90 (6th Cir. 2009). This loss of memory is typical for Everson, who stated that he can remember

what happens before and after—but not what happens during—a seizure. Id. at 489.

       Because Everson has no further memories of the interaction at issue, the defendants’ version

of events is undisputed and should be accepted for the court’s purposes here. Wysong v. City of

Heath, 260 F. App’x 848, 856 (6th Cir. 2008) (deciding summary judgment based on officer’s

version of events when plaintiff, due to disability, could not recall what happened) (citing Wertish

v. Krueger, 433 F.3d 1062 (8th Cir. 2006)). This court summarized defendants’ version of events

as follows:

       Everson threatened to swing at mall security staff and local EMS. He kicked and
       swung at individuals as they approached him. When Deputy Wittich attempted to
       retrieve [Everson’s] identification, Everson became violent and kicked the deputy.
       After being placed on the ground, Everson continued to kick and fight. When an
       EMS worker tried to obtain a blood sugar reading, Everson pushed the worker away.

Everson v. Leis, 556 F.3d at 489–90. The only additional discovery following Everson’s first

appeal—Deputy Wittich’s deposition—confirms these events.

       Putting an end to this ruckus, Wittich restrained Everson, placed him on an EMS cot, and

transported him outside the mall. Appellees’ Br. at 6. Wittich placed Everson under arrest and

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subsequently prepared a criminal complaint, charging him with both assault and disorderly conduct

under the Ohio Revised Code. Everson claims that he experiences involuntary muscle movements

during and after seizures, and that all of his aggressive actions were caused by his seizure.

Accordingly, the charges were dismissed when Everson’s attorney provided the prosecutor with

medical documentation of Everson’s disability. Appellant’s Br. at 6.

       Nearly two years later, on February 11, 2005, Everson filed claims against Sheriff Simon

Leis, Wittich, a John Doe Deputy, Northgate Mall, and John Doe employees of the mall. In his

complaint, Everson asserted multiple claims under 42 U.S.C. §§ 1983 and 1985, an equal protection

claim under the Fourteenth Amendment, an emotional distress claim under Ohio law, and a claim

under Title II of the ADA.

       On August 1, 2006, Leis and Wittich filed a motion for summary judgment. Everson’s

counsel did not reply to the motion and ultimately withdrew for personal reasons. Everson’s new

counsel requested that the district court reopen discovery, and the court granted the request on

October 11, 2007. Leis and Wittich filed an interlocutory appeal of the order to reopen discovery,

and in Everson v. Leis, this court decided that appeal, holding that Leis and Wittich were entitled to

qualified immunity on all §§ 1983 and 1985 claims against them in their individual capacities. 556

F.3d at 491–92. Because Leis and Wittich had not moved for qualified immunity from the ADA

claim against them in their individual capacities, the court did not reach the merits of the ADA claim

and remanded to the district court for further proceedings. Id. at 501.

       Everson voluntarily dismissed his equal protection and emotional distress claims, choosing

to proceed with only his Title II claim against Leis and Wittich in their official capacities. On

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October 6, 2009, the district court granted summary judgment to the defendants on Everson’s sole

remaining claim. The court assumed for purposes of summary judgment that Everson’s actions were

involuntary and caused by his epilepsy, but nonetheless concluded that any discrimination was

unintentional and thus not actionable under the ADA.

       Everson filed this timely appeal of the district court’s order of summary judgment, and this

court has appellate jurisdiction under 28 U.S.C. § 1291.

                                                 II

       This court reviews orders granting summary judgment de novo. Havensure, L.L.C. v.

Prudential Ins. Co. of America, 595 F.3d 312, 315 (6th Cir. 2010). Pursuant to Rule 56(c) of the

Federal Rules of Civil Procedure, summary judgment is appropriate only where “the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.”

       A genuine issue of material fact exists if there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party. Havensure, 595 F.3d at 315 (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party has the burden of establishing a

lack of a genuine issue of material fact, and if the moving party meets this burden, the nonmoving

party must set forth specific facts indicating the existence of a genuine issue. Univ. of Pittsburgh

v. Townsend, 542 F.3d 513, 522 (6th Cir. 2008).

       Finally, when reviewing the record for a genuine issue of material fact, the court must draw

all reasonable inferences in the light most favorable to the non-moving party. Richland Bookmart,



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Inc. v. Knox Cnty., Tenn., 555 F.3d 512, 520 (6th Cir. 2009) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 577 (1986)).

        Title II of the ADA provides: “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §

12132. To establish a claim of discrimination under Title II, a plaintiff must prove that: “(1) she has

a disability; (2) she is otherwise qualified; and (3) she is being excluded from participation in, being

denied the benefits of, or being subjected to discrimination under the program solely1 because of her

disability.” Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005) (citing Jones v. City of

Monroe, 341 F.3d 474, 477 (6th Cir. 2003)). The plaintiff must also prove that the disability

discrimination was intentional as it relates to the service, activity, or program. Tucker v. Tennessee,

539 F.3d 526, 535 (6th Cir. 2008) (“[E]ach [plaintiff] must show that he or she was intentionally

discriminated against solely because of his or her disability in the context of that public service,

activity, or program . . . .”).

        Defendants argue that Title II does not apply to arrests. Appellees’ Br. at 8. While whether

Title II applies to arrests is an open question in this Circuit, we need not decide it here. Tucker, 539

F.3d at 534–35 (noting the open question and assuming, without deciding, the applicability of Title

II to arrests in disposing of the case for a lack of intentional discrimination); Scozzari v. City of

Clare, 723 F. Supp. 2d 945, 971 (E.D. Mich. 2010) (noting that the Sixth Circuit has not decided


        1
         Although “solely” is part of this circuit’s test for disability discrimination, we do not believe
that it does any work in this case.

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whether Title II applies to arrests). Because we hold that Everson fails to establish a genuine issue

of material fact as to whether defendants intentionally discriminated against him because of his

disability, we affirm the grant of summary judgment in favor of defendants without deciding whether

Title II applies to arrests. Tucker, 539 F.3d at 534-35; Shultz v. Carlisle Police Dep’t, 706 F. Supp.

2d 613, 626 (M.D. Pa. 2010) (noting the lack of Third Circuit guidance on the same issue and

disposing of an ADA claim for a lack of intent).

                                                 III

       Because we must draw all inferences in the light most favorable to Everson, the nonmoving

party, we consider the following facts and inferences for the purpose of determining whether, as the

district court found below, there is “no genuine issue as to any material fact and [defendants are]

entitled to a judgment as a matter of law.” FED . R. CIV . P. 56(c); Richland Bookmart, 555 F.3d at

520.

       Everson has epilepsy, and his epilepsy caused all of his behavior during his interaction with

defendants.

       From the call that dispatched him to the scene, Wittich knew that Everson had recently

suffered a seizure and had been unconscious. And at the time Wittich entered the scene, Wittich

knew that Everson was acting in a semi-conscious state of mind. Everson v. Leis, 556 F.3d at 499

(“It is a fair inference, then, that the deputy should have known that Everson’s actions were made

with, at best, a semi-conscious frame of mind.”).

       When Wittich arrived at the scene, Everson threatened to “have another seizure and start

punching you guys,” which in the best light for Everson, put Wittich on notice that Everson was

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prone to having another seizure. Appellant’s Br. at 5. Everson also acknowledges that he kicked

Wittich, albeit involuntarily. Everson otherwise has no recollection of the disputed interaction in

the mall, and he accordingly does not dispute the descriptions of the interaction offered in the

affidavits of those at the scene, which should be accepted for purposes of determining whether

summary judgment is appropriate. Wysong, 260 F. App’x at 856.

        Brandon Goff, a mall security guard, averred that Everson was “threatening to swing at

uniform officers and the [EMS]” and that Everson “kicked the uniform officers and attempted to

swing at another uniform officer,” continuing to “kick and fight” after being taken to the ground.

Kellie Murphy, an EMS employee, averred that Everson “kicked and swung at the uniform officers

and pushed me away when I attempted to get a blood sugar reading” and that Everson “continued

to kick, fight and attempt to spit on us” after being taken to the ground. And Wittich similarly

averred that Everson was “violent and started kicking” and “continued to kick and fight” after being

taken to the ground.

        Wittich testified that, when he first arrived at the scene, he asked an EMS paramedic whether

Everson’s behavior was “all part of his medical condition[,]” and that the paramedic responded,

“[n]o, he’s just acting like a fucking asshole.” The district court did not consider this testimony in

its summary judgment analysis. Everson characterizes the testimony as hearsay, but the district did

not use that term, and appropriately so, as the statement was not hearsay to the extent that it is used

to demonstrate Wittich’s state of mind as opposed to the truth of the matter asserted therein, i.e., that

Everson was acting purposefully. Fed. R. Evid. 801(c); Hagan v. Warner/Elektra/Atlantic Corp.,

92 F. App’x 264, 267–68 (6th Cir. 2004) (holding that, in granting summary judgment for defendant

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Everson v. Simon Leis, et al.

employer in a discrimination suit, the district court properly considered defendant’s testimony

regarding statements made by other employees for the purpose of determining whether the employer

had discriminatory intent) (citing United States v. Horton, 847 F.2d 313, 324 (6th Cir. 1988)).

Although the district court opted not to consider the statement for its impact on Everson’s state of

mind, we may do so in deciding the issue de novo. Niemi v. NHK Spring Co., Ltd., 543 F.3d 294,

306–07 (6th Cir. 2008) (reversing order for summary judgment based on evidence in record that the

district court did not consider); see Jibson v. Mich. Educ. Ass’n-NEA, 30 F.3d 723, 729 (6th Cir.

1994) (holding that this court reviews a district court’s grant of summary judgment based on “a de

novo review of the evidence in the entire record.”).

        After restraining and removing Everson from the mall, Wittich had time to consider whether

probable cause existed to charge Everson with a crime, and when he made that determination,

Everson was no longer abusive. Everson, 556 F.3d at 499 (“Viewed in the light best to Everson,

he had recovered from his seizure when he arrived at the squad car . . . . There is nothing in the

record to suggest that he was . . . abusive at that time.”).

        Everson also heard an officer, whom he does not identify as Wittich, suggest that he did not

know what crime Everson had committed. Specifically, Everson claims that, after an unidentified

individual asked the unidentified officer what Everson was going to be charged with, the officer

replied, “I’ll think something up and fax it down.”

        Finally, Wittich received no training on accommodating people with epilepsy.




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                                                  IV

       We apply the three-step test described in Dillery and Tucker to determine whether the district

court erred in granting summary judgment for Wittich. Tucker, 539 F.3d at 532 (“to establish a

prima facie case of discrimination under the ADA, a plaintiff must prove” the Dillery elements).

Thus, in order to defeat a motion for summary judgment in his Title II claim against Wittich, Everson

must prove that: (1) he has a disability; (2) he otherwise qualifies for the service, program, or

activity; and (3) Wittich intentionally discriminated against him solely because of his disability.

Dillery, 398 F.3d at 567; Tucker, 539 F.3d at 535.

       First, Everson has alleged facts that indicate that he has a disability. Second, we assume,

without deciding, that Everson also qualifies for the service, program, or activity; i.e., that Title II

applies to arrests. The remaining question is whether Wittich intentionally discriminated against

Everson because of his disability. Everson alleges that Wittich discriminated against him, in

violation of Title II, by: (1) restraining him, (2) arresting him, and (3) charging him with assault and

disorderly conduct. We consider each of these claims in turn.

                                                   A

       Everson fails to sufficiently support his claim that Wittich intentionally discriminated against

him based on his disability by approaching and restraining him.

       In Tucker, this court ruled that “[w]here . . . officers are presented with exigent or unexpected

circumstances, it would be unreasonable to require certain accommodations be made in light of the

overriding public safety concerns . . . we rely on and expect law enforcement officers to respond

fluidly to changing situations and individuals they encounter.” 539 F.3d at 536. And in Dillery, this

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court held that, when police officers properly discharged their duties to maintain the safety of others,

their stopping a disabled woman for conduct related to her disability did not constitute intentional

discrimination. 398 F.3d at 568.

        When Wittich arrived on the scene, Everson presented a threat to those around him. Everson

v. Leis, 556 F.3d at 489–90. Everson does not contest that Wittich was called to assist a person who

was having a seizure. Nor does Everson contest that he was threatening security and medical

professionals on the scene. Wittich was expected to respond to this situation by securing the scene,

which he did by restraining Everson. See Tucker, 539 F.3d at 535; see also Dillery, 398 F.3d at 568.

Everson alleges no facts that reasonably suggest that Wittich, in acting to protect himself and others,

acted to discriminate against Everson’s disability. Everson argues that Wittich violated an Ohio

statute by reaching for his wallet, but Wittich’s alleged violation of a state law—which does not

relate to intentional discrimination—does not speak to the issue of whether he intentionally

discriminated against Everson. See OHIO REV . CODE § 2305.43 (“[A] law enforcement officer may

not search for an . . . identification card in a manner . . . that would appear to a reasonable person in

the circumstances to cause an unreasonable risk of worsening the disabled person’s condition.”).

        In a similar case in this circuit, police were contacted to assist with a mentally disabled

individual who was threatening his family with a machete. Thompson v. Williamson Cnty., Tenn.,

219 F.3d 555, 556 (6th Cir. 2000). The individual’s parents requested that the police take their son

to a hospital so that he could receive medical attention. Ibid. But when the son raised a machete at

the officer, the officer shot and killed him. Ibid. The parents sued under the ADA, arguing that their

son was denied medical assistance and killed because of his disability. Id. at 557–58. The court

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upheld summary judgment for the officer, holding that “there is no doubt that their son was disabled

under the ADA, [but] the Thompsons have failed to produce any evidence that . . . such denial [of

medical services] was because of his disability.” Id. at 558. The court further stated that “if the

decedent was denied access to medical services it was because of his violent, threatening behavior,

not because he was mentally disabled.” Ibid.

        Similarly, Wittich was justified in using reasonable force to secure the scene. See Tucker,

539 F.3d at 536. Everson makes no allegations that Wittich’s use of force was disproportionate to

or otherwise unjustified by Everson’s physical conduct. As a result, there is no room for a jury to

find that Everson discriminated against Everson in any way.

                                                    B

        Everson also fails to establish that Wittich intentionally discriminated against him, in

violation of the ADA, by arresting him. Again, Everson’s outward conduct required that Wittich

restrain him. The issue is whether, by also proceeding to arrest Everson, Wittich intentionally

discriminated against Everson because of his disability.

        Everson was ultimately charged with assault (“[n]o person shall knowingly cause or attempt

to cause physical harm to another . . . [or] recklessly cause serious physical harm . . . .”) and with

disorderly conduct (“[n]o person shall recklessly cause inconvenience, annoyance, or alarm to

another by . . . threatening to harm persons or property, or . . . violent or turbulent behavior . . . .”).

OHIO REV . CODE §§ 2903.13, 2917.11 (Baldwin’s 2003). Everson does not dispute that his physical

conduct—which included targeted verbal and physical attacks—was consistent with the violations

for which he was charged, but instead argues that Wittich knew that he lacked the requisite mens rea,

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Everson v. Simon Leis, et al.

and by proceeding to arrest him anyway, Wittich intentionally discriminated against him. See

Appellant’s Br. at 16–18. At bottom, Everson argues that Wittich knew that his conduct was caused

by his disability, and by proceeding to arrest him for that conduct, Wittich intentionally discriminated

against him because of his disability in violation of the ADA.

        As support for this claim, Everson notes a line of cases outside of this Circuit that hold an

arrestee can establish a claim under Title II by showing that the police officer knew of or should have

known of his disability and nonetheless arrested him for lawful conduct caused by the disability.

Appellant’s Br. at 9–10 (citations omitted). We do not think these two unpublished cases from

different districts support Everson’s case. In Jackson v. Inhabitants of Town of Sanford, the police

mistook the arrestee’s speech impediment and instability for drug or alcohol impairment, and despite

his explanation, arrested him. No. 94-12-P-H, 1994 WL 589617 (Sept. 23, 1994). The defendants,

however, requested summary judgment only on the grounds that the ADA did not apply to arrests,

not that they had not intentionally discriminated against the arrestee. And in Lewis v. Truitt, 960 F.

Supp. 175 (D. Ind. 1997), the district court noted that the defendants had not cited any evidence to

contradict the plaintiffs’ argument that officers refused to communicate with him because he was

deaf.

        Although we accept, for purposes of summary judgment, that Everson’s conduct was caused

by his disability, there is insufficient evidence to support a conclusion that Wittich knew that

Everson’s conduct was caused by his disability or that Wittich acted because of—rather than in spite

of—Everson’s disability. The only facts in Everson’s favor are that Wittich knew that Everson had

recently suffered a seizure and that Wittich knew that Everson had recently been unconscious.

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No. 09-4355
Everson v. Simon Leis, et al.

Everson alleges no facts that could support his bare conclusion that Wittich knew that Everson’s

seizure was ongoing during the relevant time period. Indeed, the evidence in the record points

strongly in the other direction, that Wittich believed that Everson’s seizure had concluded and that

his conduct was, in fact, purposeful. When Wittich—who had no prior training in dealing with

epilepsy—arrived at the scene, Everson was not randomly thrashing about, but was engaging in what

appeared to be targeted physical and verbal attacks. Everson threatened to swing at officers and

EMS professionals and actually did kick, swing, and spit on the officers and EMS professionals.

And, significantly, Wittich was told by an EMS professional that Everson’s conduct was not related

to a seizure. Although we presume for the purposes of summary judgment that the EMS professional

was mistaken, our inquiry is not whether Everson’s attacks were purposeful, but whether Wittich

knew that they were not purposeful. The evidence in the record compels the conclusion that he did

not know, and the line of cases relied upon by Everson is therefore inapposite. And because Everson

can not establish that Wittich knew that Everson’s conduct was caused by his seizure, we hold that

Everson can not establish that, by arresting him for that conduct, Wittich intentionally discriminated

against him because of his disability.

                                                     C

          Finally, Everson fails to sufficiently support his claim that Wittich intentionally discriminated

against him because of his disability by initiating charges against him. Everson argues that, because

Wittich had time between the arrest and filing charges to consider his lack of mens rea, Wittich

discriminated against him by still proceeding to file charges. See Appellant’s Br. at 17; Reply Br.

at 3–4.

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       Significantly, Everson alleges no events that occurred between the time he was arrested and

the time that Wittich filed charges—a time period during which Everson was fully conscious—that

would distinguish the discrimination analysis from that of the arrest itself.

       Even if the court accepts as true Everson’s assertion that he heard an officer state that he will

“think . . . up [a charge] and fax it down,” and even if the court infers that Wittich was the speaker,

Everson still cannot establish a genuine issue as to intentional disability discrimination. In light of

the preceding events, the statement appears to indicate that Wittich believed that Everson had

committed crimes, but was not certain of which crimes. Such uncertainty may raise issues as to the

lawfulness of the arrest. But see Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (holding that an

arresting officer must have probable cause that the suspect had committed a crime, not necessarily

the crime that the officer subjectively had in mind at the time of the arrest). It does not, however,

provide any evidence of discriminatory intent that could support Everson’s Title II claim.

                                                  V

       It is not clear why Everson, after dismissing his § 1983 claims, has retained Leis as a

defendant. Although he alleges that the County had no epilepsy-specific policies and training,

Everson devotes his argument to Wittich’s conduct and never specifically addresses Leis. Nor does

Everson cite any cases or develop a legal argument as to how Leis might be liable under Title II of

the ADA. Accordingly, Everson has waived any argument that the district court erred in granting

summary judgment to Leis. Garner v. Cuyahoga Juvenile Court, 554 F.3d 624, 640–41 (6th Cir.

2009) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument

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in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (quoting McPherson v.

Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)); United States v. Williams, 544 F.3d 683, 690 (6th

Cir. 2008) (holding that arguments are waived when an appellant “fail[s] to develop or support his

argument with any legal authority”).

                                                VI

       For the foregoing reasons, we AFFIRM the decision of the District Court.




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        KAREN NELSON MOORE, Circuit Judge, dissenting. Because I believe that there is

a genuine issue of material fact with respect to whether Wittich knew that Everson’s conduct was

related to his disability, I respectfully dissent. I would reverse the district judge’s grant of summary

judgment in favor of Wittich and allow Everson to proceed on his claim, under Title II of the

Americans with Disabilities Act (“ADA”), that Wittich discriminated against him in arresting and

charging him with assault and disorderly conduct. I write separately also to highlight the tension of

this circuit’s “solely because of” standard for intentional discrimination with the majority of our

sister circuits.

               I. WRONGFUL-ARREST THEORY AS A METHOD OF PROOF
                       FOR INTENTIONAL DISCRIMINATION

        I believe that Everson has demonstrated a claim under Title II of the ADA that Wittich

intentionally discriminated against him because of his disability when Wittich arrested him and

charged him with assault and disorderly conduct. Everson alleges his claim under the “wrongful-

arrest theory,” typically attributed to the case Lewis v. Truitt, 960 F. Supp. 175 (D. Ind. 1997). Under

this theory, a plaintiff must show that “(1) he was disabled, (2) the defendants knew or should have

known he was disabled, and (3) the defendants arrested him because of legal conduct related to his

disability.” Id. at 178. This test is “a specific application of the general standard.” Gohier v.

Enright, 186 F.3d 1216, 1220 (10th Cir. 1999) (discussing the wrongful-arrest theory but concluding

that it was not applicable to the facts of that case because the defendant officer did not arrest the

disabled decedent but rather used force on him while he was committing an assault related to his

disability).


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       Here, it is undisputed that Everson is disabled and that Wittich knew Everson had a seizure-

related medical condition. With respect to the third element, however, Wittich argues that to show

that he discriminated against Everson because of his disability2—i.e., to show intentional

discrimination—Everson must show that Wittich knew Everson’s conduct was related to his

disability. In other words, Wittich argues that under a modified wrongful-arrest theory for




       2
         In his brief, Wittich argues that Everson was not arrested because of his disability but rather
because he “was engaged in objectively verifiable misconduct.” Appellee Br. at 8. Wittich further
argues that the question of whether he violated the ADA hinges on whether he violated the
constitutional protections for wrongful arrest. Id. at 16 (“[Everson’s] actions clearly constituted
probable cause that he had violated both statutes [for which he was arrested] and his arrest was
therefore completed with probable cause. There was no constitutional violation by Deputy Wittich
in effecting the arrest of Everson, and therefore no violation of the ADA.”).
        For his arguments, Wittich relies on the Fourth Circuit’s decision in Bates ex rel. Johns v.
Chesterfield County, Virginia, 216 F.3d 367 (4th Cir. 2000). In that case, officers were responding
to a 911 call regarding a “suspicious suspect” and encountered an autistic teenager who became
physically confrontational. Id. at 371. The officers did not know the teenager was autistic when the
incident first escalated but were informed of his disability during the course of the incident. Despite
knowing of the teenager’s autism, the officers decided to charge him with assault. The Fourth
Circuit conducted little analysis with respect to the plaintiff’s ADA claim, relying instead on its
analysis of the plaintiff’s Fourth Amendment claim. Id. at 368 (“And as the officers complied with
the Fourth Amendment in all respects, we are unable to discern any discrimination on account of
disability.”). Specifically, the court concluded that “Bates was not arrested because of his disability”
but rather “because there was probable cause to believe that he assaulted a police officer”—in other
words, “because of [his] objectively verifiable misconduct.” Id. at 373.
        I do not agree with the Fourth Circuit’s view that the analysis of an ADA discrimination
claim simply relies on a Fourth Amendment reasonableness analysis. At oral argument, when asked
what would be intentional discrimination given that the officer could always rely on the involuntary
actions caused by an epileptic seizure to say that he relied on “objectively verifiable misconduct,”
counsel for Wittich responded that an officer would have to know of the individual’s disability and
know that the individual’s conduct was related to the disability.
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No. 09-4355
Everson v. Simon Leis, et al.

intentional discrimination, the third element requires the plaintiff to show that the defendant arrested

him because of legal conduct that the defendant knows is related to the plaintiff’s disability.3

       The majority concludes that there is “insufficient” evidence that Wittich knew that Everson’s

actions were related to his medical condition. Majority Op. at 12. However, Everson can prove that

Wittich had the requisite knowledge through circumstantial evidence, and Wittich’s subjective

knowledge is a question of fact for the jury. Cf. Farmer v. Brennan, 511 U.S. 825, 842 (1994)

(concluding that, in the context of the Eighth Amendment deliberate-indifference standard,


       3
          By modifying the third element to require that the officer know that the person’s conduct
is related to his disability, the theory would not cover plaintiffs in the scenario contemplated by the
Lewis court in setting forth the wrongful-arrest theory and first expressed by the House Judiciary
Committee when considering the ADA:
         “In order to comply with the non-discrimination mandate, it is often necessary to
         provide training to public employees about disability. For example, persons who
         have epilepsy, and a variety of other disabilities, are frequently inappropriately
         arrested and jailed because police officers have not received proper training in the
         recognition of and aid of seizures. Such discriminatory treatment based on disability
         can be avoided by proper training.”
Lewis, 960 F. Supp. at 178 (quoting H.R. Rep. No. 101-485, pt. III, 101st Cong., 2d Sess. 50,
reprinted in 1990 U.S.C.C.A.N. 473). The wrongful-arrest theory from Lewis contemplates an ADA
violation when law-enforcement officers “misperceive[] the effects of a disability as illegal
conduct.” Gohier, 186 F.3d at 1221 (emphasis added). We require, however, the plaintiff to “show
that the discrimination was intentionally directed toward him or her in particular.” Tucker v.
Tennessee, 539 F.3d 526, 532 (6th Cir. 2008), cert. denied, 130 S. Ct. 60 (2009). The wrongful-
arrest theory nevertheless could be used as an indirect method of proof to show intentional
discrimination if the plaintiff proved that the officer knew or should have known that the plaintiff’s
conduct is related to the disability.
         I note also that we have stated that the failure to train officers on how to comply with the
ADA is not intentional discrimination. Dillery v. City of Sandusky, 398 F.3d 562, 568 (6th Cir.
2005). Indeed, Wittich benefits in this case from his lack of training in how to recognize and handle
situations involving a person having an epileptic seizure. Majority Op. at 13. Although some courts
have applied a “reasonable-accommodation-during-arrest theory,” Everson has not developed a
failure-to-accommodate argument in this case. See Gohier, 186 F.3d at 1222 (recognizing theory
but declining to decide whether it would apply to the facts of that case because the plaintiff did not
pursue the theory on appeal).
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Everson v. Simon Leis, et al.

“[w]hether a prison official had the requisite knowledge of a substantial risk is a question of fact

subject to demonstration in the usual ways, including inference from circumstantial evidence”).

Viewing the facts in the light most favorable to Everson, I think that Everson does present

circumstantial evidence from which a reasonable jury could conclude that Wittich knew Everson’s

conduct was related to his seizure. Thus, there is a genuine issue of material fact remaining, and

summary judgment is inappropriate.

       To start, Wittich admits that he was responding to a call requesting that he help a person at

the mall having a seizure; the dispatch call did not indicate that a crime or disturbance was occurring.

R.51 (Wittich Dep. at 59–60); R.21-8 (Wittich Aff. at 1). Wittich also admits that, after he arrived

on the scene but before anyone attempted to restrain Everson, he heard Everson say, “If you all didn’t

get away, I will have another seizure and start punching you guys.” R. 51 (Wittich Dep. at 103). The

majority concludes that this statement, “in the best light for Everson, put Wittich on notice that

Everson was prone to having another seizure.” Majority Op. at 6–7. But the majority ignores the

second clause of Everson’s statement: “I will have another seizure and start punching you guys.”

In the light most favorable for Everson, the statement put Wittich on notice not only that Everson

was prone to having another seizure but also that the seizures come with punches—i.e., that his

seizures are related to his violent behavior.

       Furthermore, a prior panel of this court concluded that

       [v]iewed in the light best to Everson, he had recovered from his seizure when he
       arrived at the squad car. There is nothing in the record to suggest that he was
       physically or verbally abusive at that time. Deputy Sheriff Wittich knew that
       Everson had suffered an epileptic seizure. It is a fair inference, then, that the deputy


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No. 09-4355
Everson v. Simon Leis, et al.

       should have known that Everson’s actions were made with, at best, a semi-conscious
       frame of mind.

Everson v. Leis, 556 F.3d 484, 499–500 (6th Cir. 2009); see R.20 (Everson Dep. at 27) (indicating

that Everson came out of the seizure “[w]hen [he] was on the bed, basically when they were rolling

[him] out”). To be sure, that Wittich should have known that Everson’s conduct was not purposeful

does not prove conclusively that Wittich did in fact know. But an inference can be drawn from the

fact that he should have known, and that inference is circumstantial evidence of Wittich’s actual

knowledge. Cf. Farmer, 511 U.S. at 842–43 & n.8 (“[A] factfinder may conclude that a [defendant]

knew of a substantial risk from the very fact that the risk was obvious.”; “[I]f the risk is obvious, so

that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize

it; but the inference cannot be conclusive, for we know that people are not always conscious of what

reasonable people would be conscious of.” (alterations in original) (internal quotation marks

omitted)).

       The majority may be correct that the evidence in Wittich’s favor—i.e., Wittich’s testimony

that, after Everson was restrained, Wittich asked an EMS paramedic whether Everson’s conduct was

related to the seizures and the paramedic told Wittich no, R.51 (Wittich Dep. at 42–43, 83–84)—

is “strong[er].” Majority Op. at 13. But “[w]hen reviewing a district court’s grant of summary

judgment, [we] may not determine the credibility of witnesses or weigh the evidence.”4 Reeves v.



       4
        For example, at oral argument, counsel for Everson raised the fact that evidence of the
Wittich’s conversation with the paramedic was first brought to light at Wittich’s deposition; the
conversation was not included in either the paramedic’s affidavit or Wittich’s charging documents.
Such arguments regarding the credibility of Wittich’s testimony are appropriate for the factfinder to
consider.
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No. 09-4355
Everson v. Simon Leis, et al.

Swift Transp. Co., 446 F.3d 637, 640 (6th Cir. 2006). I believe that, viewing the evidence in the

light most favorable to Everson, he has alleged circumstantial evidence that Wittich knew Everson’s

conduct was related to his medical condition. Therefore, I believe that there is a genuine issue of

material fact with respect to whether Wittich intentionally discriminated against Everson when

arresting him.

       For the same reasons, I believe that there is also a disputed issue of material fact with respect

to whether Wittich discriminated against Everson when charging him with assault and disorderly

conduct. I also note that, at the summary judgment stage, we must accept as true “Everson’s

assertion that he heard an officer state that he will ‘think . . . up [a charge] and fax it down,’”

Majority Op. at 14 (quoting R. 20 (Everson Dep. at 28)), and we must construe the statement in

Everson’s favor. Instead, the majority conjectures what the statement “appears to indicate” from the

perspective of Wittich. Majority Op. at 14. In the best light to Everson, this statement raises an

inference that the officer who made the statement knew that he had no basis to suspect that Everson

had committed a crime, and that inference is circumstantial evidence that supports a claim of

intentional discrimination.

       Accordingly, I would reverse the district court’s grant of summary judgment in favor of

Wittich on Everson’s discrimination claim with respect to Wittich arresting and charging him with

assault and disorderly conduct.




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No. 09-4355
Everson v. Simon Leis, et al.

       II. INTENTIONAL DISCRIMINATION IN ON-THE-SCENE SITUATIONS

       I agree with the majority that Everson has not established a claim that Wittich intentionally

discriminated against him by approaching and restraining him. I would not extend the above-

discussed indirect method of proof for demonstrating intentional discrimination with respect to

arrests and filing charges to an officer’s on-the-scene decisions in unexpected or exigent

circumstances. See Gohier, 186 F.3d at 1217–18 (explaining why the wrongful-arrest theory would

not apply when an officer uses force in response to threatening conduct, even if the conduct is related

to the individual’s disability). Whereas an officer’s decision to arrest and charge an individual is

focused on the individual’s conduct and its lawfulness, an officer’s decisions in on-the-scene

situations involve broader concerns, including officer and public safety.          See Thompson v.

Williamson Cnty., 219 F.3d 555, 558 (6th Cir. 2000) (concluding that “if the decedent was denied

access to medical services it was because of his violent, threatening behavior, not because he was

mentally disabled”). Because of these additional considerations in an officer’s on-the-scene

decisions, the modified wrongful-arrest method of proof explained above is not sufficient to raise

an inference of intentional discrimination from the fact that the officer knew the individual’s actions

were related to his disability. Therefore, I agree that Everson has not demonstrated that Wittich

intentionally discriminated against him in approaching and restraining him.

       I do not agree, however, with the majority’s assertions that Wittich’s actions in approaching

and restraining Everson were necessarily compelled by the situation.5 Majority Op. at 10 (“Wittich


       5
       The majority also includes a short discussion of the reasonableness of the force that Wittich
used while restraining and arresting Everson. Majority Op. at 11. This court previously dismissed
Everson’s excessive-force claim, Everson, 556 F.3d at 497–98, and, as I explained above, I believe
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No. 09-4355
Everson v. Simon Leis, et al.

was expected to respond to this situation by securing the scene, which he did by restraining

Everson.”), 11 (“Everson’s outward conduct required that Wittich restrain him.”). Whereas

restraining someone engaging in conduct similar to Everson’s may be the appropriate response

generally, there is evidence in the record indicating that officers should not approach or attempt to

restrain a person having an epileptic attack. R. 51-1 (Epilepsy Foundation Doc.); R. 51-2 (OHIO

REV . CODE ANN . § 2305.43). What law-enforcement procedures or practices were “required” in

response to Everson’s conduct or “expected” of Wittich in the situation may be relevant to a failure-

to-accommodate claim, which Everson does not develop in this case.6 What matters for Everson’s

claim of intentional discrimination is Wittich’s statement that he believed Everson’s conduct was

threatening his safety and the safety of others, and Everson’s failure to provide any evidence, direct




that whether Wittich discriminated against Everson under the ADA is a separate question from
whether Wittich acted reasonably under the Fourth Amendment.
       6
          This court has not explicitly decided whether a reasonable-accommodation claim under Title
II is a viable claim separate from a disparate-treatment or disparate-impact type claim. See Tucker,
539 F.3d at 532–33, 535 (contemplating the accommodation requirement within the framework of
an intentional discrimination claim but also stating the plaintiff must show intentional discrimination
or failure to accommodate effectively); Dillery, 398 F.3d at 568 (recognizing that the plaintiff made
a reasonable-accommodation argument but providing no further accommodation analysis); Ability
Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 904 n.4 (6th Cir. 2004) (questioning,
without deciding, whether it was appropriate to characterize a failure-to-accommodate claim as a
form of disparate-impact discrimination); Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003)
(construing the plaintiff’s argument to be relating to reasonable accommodation but not discussing
the relationship of a reasonable-accommodation claim to an intentional-discrimination claim). But
see Wis. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006) (en banc)
(distinguishing the failure to accommodate as an independent claim from disparate-treatment
claims); Henrietta D. v. Bloomberg, 331 F.3d 261, 275 (2d Cir. 2003) (collecting cases for the same),
cert. denied, 541 U.S. 936 (2004).
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No. 09-4355
Everson v. Simon Leis, et al.

or circumstantial, to discredit Wittich or otherwise suggest that Wittich acted because of Everson’s

disability.

                   III. THE “SOLELY BECAUSE OF” STANDARD FOR
                           INTENTIONAL DISCRIMINATION

        I am also compelled to highlight at this time how this court’s “solely because of” standard

for plaintiffs to prove a prima facie case of intentional discrimination under Title II of the ADA

conflicts with the majority of our sister circuits. Although I agree with the majority that the “solely”

standard is not dispositive in this case, I think that our divergence from the majority of circuits on

this standard is an issue that our en banc court should consider in an appropriate case.

        The text of Title II states that “no qualified individual with a disability shall, by reason of

such disability, be excluded from participation in or be denied the benefits of the services, programs,

or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.

§ 12132 (emphasis added). Our sister circuits have tracked this language when setting forth the

elements of a prima facie case. Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32

(3d Cir. 2007) (“by reason of his disability”); Bircoll v. Miami-Dade Cnty., 480 F.3d 1072,1083

(11th Cir. 2007) (“by reason of the plaintiff’s disability”); Buchanan v. Maine, 469 F.3d 158, 170–71

(1st Cir. 2006) (“by reason of the plaintiff’s disability” (internal quotation marks omitted)); Rodde

v. Bonta, 357 F.3d 988, 995 (9th Cir. 2004) (“by reason of his disability” (internal quotation marks

omitted)); Henrietta D., 331 F.3d at 272 (“by reason of plaintiffs’ disabilities”); Gohier, 186 F.3d

at 1219 (“by reason of the plaintiff’s disability” (internal quotation marks omitted)); Randolph v.

Rodgers, 170 F.3d 850, 858 (8th Cir. 1999) (“based upon disability”); Lightbourn v. Cnty. of El


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No. 09-4355
Everson v. Simon Leis, et al.

Paso, 118 F.3d 421, 428 (5th Cir. 1997) (“by reason of their disability”), cert. denied, 522 U.S. 1052

(1998).

          But the Fourth Circuit, in a decision on which this court relied in Jones v. City of Monroe,

341 F.3d 474, 477 (6th Cir. 2003), has stated that a Title II plaintiff must establish that the

discrimination was “solely on the basis of the disability.” Doe v. Univ. of Md. Med. Sys. Corp., 50

F.3d 1261, 1265 (4th Cir. 1995). In both Jones and Doe, the plaintiffs brought claims under Title

II of the ADA and under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the courts applied the

sole-motivation standard to both claims. Jones, 341 F.3d at 477 & n.3; Doe, 50 F.3d at 1264–65 &

n.9. The text of the Rehabilitation Act, however, includes the word “solely,” whereas the ADA does

not. Compare 29 U.S.C. § 794(a) (“No otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, . . . be subjected to discrimination . . . .” (emphasis added)),

with 42 U.S.C. § 12132 (“[N]o qualified individual with a disability shall, by reason of such

disability, . . . be subjected to discrimination . . . .”). Prior to Jones, this court recognized that,

although we frequently apply the same analysis to claims under both statutes, this textual difference

may be an instance in which the analyses diverge. McPherson v. Mich. High Sch. Athletic Ass’n,

Inc., 119 F.3d 453, 460 (6th Cir. 1997) (en banc); see also McNely v. Ocala Star-Banner Corp., 99

F.3d 1068, 1073–77 (11th Cir. 1996) (analyzing the statutory language, legislative history, and case

law to conclude that it is improper to import “solely” from the Rehabilitation Act into the ADA ).

          But in Jones, we summarily concluded that “[f]or purposes of [that] case, there are no

relevant differences between Title II of the ADA and Section 504 of the Rehabilitation Act,” 341

F.3d at 477 n.3, and for the first time imported the sole-motivation standard from the Rehabilitation

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No. 09-4355
Everson v. Simon Leis, et al.

Act into the third element of the prima facie case for Title II ADA claims with no analysis other than

citations to Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998) (setting

forth the prima facie case for a Title II ADA claim but without using the word “solely”), Burns v.

City of Columbus, 91 F.3d 836, 841 (6th Cir. 1996) (a Rehabilitation Act case), and Doe, 50 F.3d

1261).7 Jones, 341 F.3d at 477. Although elsewhere in the Jones opinion we describe the third

element without the word “solely”—“whether [the plaintiff] was excluded from participation in or

denied a benefit on the basis of her disability,” id. at 477 n.4 (quoting Henrietta D., 331 F.3d at

276–78)—the sole-motivation standard has become firmly entrenched in this court’s binding Title

II precedent.8 See Tucker v. Tennessee, 539 F.3d 526, 532 (6th Cir. 2008), cert. denied, 130 S. Ct.


       7
          Jones was not the first time that we summarily imported the sole-motivation standard from
the Rehabilitation Act into the ADA. In Maddox v. University of Tennessee, 62 F.3d 843, 846 & n.2
(6th Cir. 1995), we added the Rehabilitation Act’s “solely” language to the “because of” standard
under Title I of the ADA. We have since recognized that our sole-motivation standard in the Title
I area is in tension with the majority of our sister circuits. Macy v. Hopkins Cnty. Sch. Bd. of Educ.,
484 F.3d 357, 363–64 n.2 (6th Cir.) (collecting cases from other circuits), cert. denied, 552 U.S. 826
(2007); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 454 (6th Cir. 2004) (recognizing that the
sole-motivation standard is still the law of this circuit, even though it is in tension with other
circuits); see also Pinkerton v. Spellings, 529 F.3d 513, 518 & n.30 (5th Cir. 2008) (collecting cases
reaching “the conclusion that the ADA causation standard does not require a showing of sole cause”
but noting that our court has concluded otherwise). But see Todd v. City of Cincinnati, 436 F.3d 635,
637–38 (6th Cir. 2006) (discussing Monette v. Elec. Data Sys. Corp., 90 F.3d 1173 (6th Cir. 1996),
and attempting to limit application of the sole-motivation standard).
       8
         Some circuits have interpreted the “by reason of” language of Title II to establish a
“motiving factor” standard. See, e.g., Head v. Glacier Nw., Inc., 413 F.3d 1053, 1065–66 (9th Cir.
2005); Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 579 (2d Cir. 2003); cf. Macy, 484 F.3d
at 363–64 n.2 (noting cases from other circuits that apply a “motivating factor” standard to claims
under Title I of the ADA). It is unclear whether a mixed-motive standard is proper under the ADA
in light of the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., --- U.S. ---, 129
S. Ct. 2343, 2352 (2009), which held that mixed-motive analysis does not apply in the context of the
Age Discrimination in Employment Act of 1967 (“ADEA”). See Serwatka v. Rockwell Automation,
Inc., 591 F.3d 957, 961–62 (7th Cir. 2010) (extending Gross to the ADA); see also Bolmer v.
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No. 09-4355
Everson v. Simon Leis, et al.

60 (2009); Dillery v. City of Sandusky, 398 F.3d 562, 567 (6th Cir. 2005) (quoting Jones, 341 F.3d

at 477).

       Because our “solely because of” standard is in tension with the majority of circuits, I believe

that our en banc court should consider the continued validity of our decisions applying this standard

in an appropriate case.

                                       IV. CONCLUSION

       I respectfully dissent and would reverse the district judge’s grant of summary judgment in

favor of Wittich with respect to Everson’s claim that Wittich intentionally discriminated against him

by arresting and charging him with assault and disorderly conduct for involuntary conduct caused

by his disability. Because I believe that a genuine issue of material fact remains with respect to

whether Wittich knew that Everson’s conduct was related to his disability, I would allow Everson

to proceed on his ADA claim against Wittich.




Oliveira, 594 F.3d 134, 148 (2d Cir. 2010) (recognizing open question regarding Gross’s extension
to ADA claims); Crouch v. J C Penney Corp., 337 F. App’x 399, 402 n.1 (5th Cir. 2009)
(unpublished decision) (same). Regardless, even the “but-for” causal standard does not require
disability to be the sole motivating factor. See Goostree v. Tennessee, 796 F.2d 854, 863 (6th Cir.
1986) (distinguishing sole-motivation standard from “but for” standard) (quoting McDonald v. Santa
Fe Trail Transp. Co., 427 U.S. 273, 282 n.10 (1976)), cert. denied, 480 U.S. 918 (1987); see also
Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1277–78 (10th Cir. 2010) (same); cf. Gross, 129 S.
Ct. at 2350 (describing a “but-for” cause as one that “had a determinative influence on the outcome”
(emphasis and internal quotation marks omitted)).
                                                - 27 -
