                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0769n.06

                                           No. 13-3371
                                                                                      FILED
                                                                                    Oct 08, 2014
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

TAMMY ROSEBROUGH,                                )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )
                                                      ON APPEAL FROM THE UNITED
                                                 )
                                                      STATES DISTRICT COURT FOR THE
BUCKEYE VALLEY HIGH SCHOOL,                      )
                                                      SOUTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellee.                       )
                                                 )
                                                 )




       BEFORE: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. In this disability discrimination case,

plaintiff Tammy Rosebrough appeals the district court’s order of summary judgment, which

dismissed all of her claims against defendant Buckeye Valley High School. Rosebrough, who is

missing her left hand, alleged that Buckeye Valley discriminated against her on the basis of this

disability when it prevented her from becoming employed as a bus driver for the school. This

appeal is Rosebrough’s second appearance before us. In an earlier decision, the district court

dismissed Rosebrough’s claims on summary judgment, finding that she had failed to satisfy an

element of her prima facie burden; we reversed and remanded. On remand, the district court

again granted summary judgment, finding fault with a different element of the prima facie case.

For the reasons set out below, we affirm the judgment of the district court.
No. 13-3371
Rosebrough v. Buckeye Valley

                    FACTUAL AND PROCEDURAL BACKGROUND

   The facts in this case are not in serious dispute. In our earlier decision, we summarized them

as follows:

       Tammy Rosebrough was born without a left hand. In September 2007,
       Rosebrough applied for a cook’s position at Buckeye Valley North High School.
       Rosebrough interviewed with department supervisor Rodger Cope, who told her
       the school was in desperate need of bus drivers and asked if she would be
       interested in that position. Cope mentioned he would need to check with the State
       to see if there were any restrictions that would prevent Rosebrough from driving a
       school bus. Rosebrough said she wanted to speak with her family, then called the
       next day to say she was interested in the position. Cope told her he was still
       waiting to hear back from the State about the restriction issue. In the meantime,
       Cope released a memorandum to employees citing the school’s need for bus
       drivers.


       Rosebrough later called Cope to ask “what was the hold up,” and Cope said again
       he would contact the State. A few days later, on October 3 or 4, Cope called
       Rosebrough to inform her that a waiver is required from the Ohio Department of
       Education before an individual who is missing a limb is allowed to operate a
       school bus and told her to come to the office to pick up the waiver forms.
       Rosebrough received approval of the waiver from the Department of Education
       several weeks later on January 23, 2008. The State rejected Rosebrough’s first
       two waiver submissions because the first waiver’s medical evaluation was
       completed by a physical therapist, instead of the required orthopedic surgeon or
       physiatrist, and the second waiver was not filled out completely. Rosebrough
       testified she relied on Cope’s instructions and “filled out what [Cope] told me to
       fill out.”


       One or two days before Rosebrough received her waiver, Sandy Presley, a
       Buckeye Valley bus driver trainer, contacted Rosebrough to schedule her training,
       which began soon thereafter with another trainer, Deanna Carper. On February
       15, Rosebrough met with Cope to discuss some issues she was having with her
       training. Relevant to this case, Rosebrough complained that Presley made
       discriminatory comments to her about her disability on two separate occasions.
       On February 5, Presley said Rosebrough “was going to need a lot more [training]
       hours . . . because of [her] arm” than another trainee who “knew the bus because
       he worked on cars and he was a race car driver.” On February 9, in front of
       Carper and the other trainee, Presley told Rosebrough she “won’t be able to drive
       bus 4 or 11 . . . because of [her] hand” since the doors on those buses are difficult
       to open. Presley denies making statements referencing Rosebrough’s disability.
       Cope told Rosebrough he would speak with Presley about the comments.

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Rosebrough v. Buckeye Valley


       Cope called Rosebrough for a follow-up meeting in his office where he said
       Carper and Presley told him Rosebrough was speeding, braking too fast, and not
       listening to instructions. Rosebrough testified Cope said “it was his trainer’s
       responsibility to make sure that I knew what I was doing and that it was his job to
       fire me if I wasn’t going to do the proper job.” She testified Cope said she “had
       become high maintenance,” slammed his fist down on the desk, and said “[t]he
       parents at Buckeye Valley will not be happy with you as a driver.” Rosebrough
       believed Cope meant the parents would not want Rosebrough because she had a
       hand missing. On February 19, Rosebrough and her husband met with the
       superintendent, John Schiller, who said he and Cope would discuss the issue.
       When Rosebrough did not hear anything from Schiller for several days, she called
       him and he apologized for not getting back with her and said “they would be more
       than happy to have [her] as a driver at Buckeye Valley.”


       After Rosebrough resumed her training, Carper suggested she contact the State to
       schedule her commercial driver’s license (“CDL”) certification test which
       required Rosebrough to attend with a trainer and a school bus. Carper told
       Rosebrough she could come any day or time, so Rosebrough scheduled her test
       for March 20. On the morning of March 19, Carper called Rosebrough to say she
       could not attend the test because Cope had refused to let other bus drivers split
       Carper’s bus route and she was unable to get a substitute. Rosebrough cancelled
       the test with the State and did not ask the State or Carper to reschedule because
       she “believe[d] there would never be a substitute driver” available to allow a
       trainer to take her to get her test “after everything they had done to me.”


       After canceling her test with the State, Rosebrough called Superintendent Schiller
       and requested her paperwork so she could finish her training and obtain her CDL
       elsewhere. Over the next several months, Rosebrough contacted several other
       testing centers and school districts but learned she could only be trained by the
       school district that ultimately hired her. Rosebrough never contacted Buckeye
       Valley again to return and finish her training.


Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 429-30 (6th Cir. 2012).

       Rosebrough subsequently filed suit against Buckeye Valley, pursuant to 42 U.S.C.

§ 1983, asserting claims for discrimination and disparate treatment under the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Ohio Revised Code, § 4112.02 et seq.

Buckeye Valley moved for summary judgment, attacking the sufficiency of Rosebrough’s prima


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No. 13-3371
Rosebrough v. Buckeye Valley

facie case. The district court granted Buckeye Valley’s motion, finding that Rosebrough was not

“otherwise qualified” to be a school bus driver because she did not have a CDL. Rosebrough v.

Buckeye Valley High Sch., 2:09-CV-182, 2010 WL 3036862 (S.D. Ohio Aug. 2, 2010); see Plant

v. Morton Int’l, Inc., 212 F.3d 929, 936 (6th Cir. 2000) (stating that at prima facie stage, ADA

plaintiff must make showing that she was “otherwise qualified for [the] previous

position . . . with or without reasonable accommodation”).         Rosebrough appealed, and we

reversed, finding that “[i]t is Rosebrough’s ADA-covered position as a trainee that is at issue,

and there can be no logical basis for requiring her to have a CDL to be ‘otherwise qualified’ for

the position of training to obtain a CDL.”        Rosebrough, 690 F.3d at 433. Therefore, we

concluded, “having a CDL was not necessary for Rosebrough to perform the essential functions

of her training position, and the district court erred in holding otherwise.” Id.

       We remanded to permit the district court to address, in the first instance, the other

elements of Rosebrough’s prima facie case.          On remand, the district court again granted

summary judgment for Buckeye Valley. Rosebrough v. Buckeye Valley High Sch., 2:09-CV-

182, 2013 WL 633867 (S.D. Ohio Feb. 20, 2013). It found that Rosebrough had failed to

establish a prima facie case because the record did not show any adverse action taken against

Rosebrough by Buckeye Valley and that Rosebrough herself was responsible for her decision to

abandon the CDL test. Rosebrough again appealed to this court.

                                              DISCUSSION

Standard of Review

       We review a district court’s grant of summary judgment de novo. Trustees of Detroit

Carpenters Fringe Benefit Funds v. Indus. Contracting, LLC, 581 F.3d 313, 317 (6th Cir. 2009).

Judgment on this basis is appropriate “if the pleadings, the discovery and the disclosure materials
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No. 13-3371
Rosebrough v. Buckeye Valley

on file, and any affidavits ‘show that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.’” Burgess v. Fischer, 735 F.3d 462, 471 (6th

Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). There is “no genuine issue for trial where the record

‘taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Id.

(quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In

deciding the motion, “the district court must construe the evidence and draw all reasonable

inferences in [Rosebrough’s] favor.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th

Cir. 2008). However, “the mere existence of a scintilla of evidence in support of the non-moving

party is insufficient to defeat a motion for summary judgment.” V & M Star Steel v. Centimark

Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

252 (1986)).

Discrimination under the ADA

       Rosebrough asserts three claims under the ADA and three corresponding claims under

the Ohio Revised Code: employment discrimination based on disability, employment

discrimination based on perceived disability, and employment discrimination based on disparate

treatment.     Because disability discrimination under Ohio law is treated similarly to

discrimination under the ADA, “we may review Rosebrough’s state and federal claims solely

under the ADA analysis.” Rosebrough, 690 F.3d at 431.

       An ADA plaintiff may show discrimination through direct or indirect evidence. Talley v.

Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). Rosebrough offers

only indirect evidence of discrimination; as a result, the burden-shifting framework of

McDonnell Douglas Corp. v. Green applies. Nance v. Goodyear Tire & Rubber Co., 527 F.3d

539, 553 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

                                               -5-
No. 13-3371
Rosebrough v. Buckeye Valley

Under this framework, Rosebrough must first establish a prima facie case of discrimination.

Once she does so, the burden shifts to Buckeye Valley to present a nondiscriminatory reason for

the adverse action it took against her. Id. If Buckeye Valley succeeds in doing so, Rosebrough

must identify evidence from which a reasonable jury could conclude that Buckeye Valley’s

proffered non-discriminatory reason is pretextual. Id. At the prima facie stage, Rosebrough’s

burden is not onerous. Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir.

2007) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)), abrogated on

other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 317 (6th Cir. 2012)

(en banc).

       The elements of Rosebrough’s three ADA claims largely overlap. In order to establish a

prima facie case of disability-based discrimination under the ADA, Rosebrough must show that

she is disabled but is otherwise qualified for the position, with or without reasonable

accommodation; that she suffered an adverse employment decision; that the employer knew or

had reason to know of the plaintiff’s disability; and either that the position remained open while

the employer sought other applicants or the disabled individual was replaced. See Monette v.

Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996), abrogated on other grounds by Lewis,

681 F.3d at 317. A perceived disability claim applies essentially the same prima facie test,

except that a nondisabled plaintiff may satisfy the first element by showing that she was

perceived to be and treated as if she were disabled. Swanson v. Univ. of Cincinnati, 268 F.3d

307, 318 (6th Cir. 2001). Likewise, we review a claim for disparate treatment using this same

framework, except that “the plaintiff can satisfy the fifth element of the prima facie case by

showing that similarly situated non-disabled employees were treated more favorably.”




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No. 13-3371
Rosebrough v. Buckeye Valley

Rosebrough, 690 F.3d at 431 n.2 (citing Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660

(6th Cir. 1999)).

       The district court initially granted summary judgment for Buckeye Valley on the second

element—finding that Rosebrough was not “otherwise qualified for the position” of bus driver

because she did not have a CDL. After our reversal and remand, Buckeye Valley argued that

Rosebrough had failed to satisfy the first and third elements of her prima facie test—a showing

of disability and of adverse action by the employer. The district court assumed without deciding

that Rosebrough was disabled, but found summary judgment appropriate on the basis that

Rosebrough had not “suffered an adverse employment decision.”            Rosebrough, 2013 WL

633867, at **5-6. We agree.

       To show an “adverse employment action,” an ADA plaintiff must point to a negatively

impactful employment decision by Buckeye Valley regarding “hiring, advancement, or

discharge[,] . . . compensation, job training, and other terms, conditions, and privileges of

employment,” 42 U.S.C. § 12112(a), or any other “materially adverse change in the terms of [ ]

employment.” White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 797 (6th Cir. 2004) (en

banc) (citing Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)). Although

“adverse employment action” thus enjoys a very broad definition, it is not without limits. For

example, “[a] ‘mere inconvenience’ . . . or a ‘bruised ego’ is not enough to constitute an adverse

employment action,” White, 364 F.3d at 797 (quoting Spring v. Sheboygan Area Sch. Dist.,

865 F.2d 883, 886 (7th Cir. 1989)), and a plaintiff does not satisfy this element unless she can

show that her disability (or perceived disability) was the “but-for” cause of the employment

decision. Lewis, 681 F.3d at 318.




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No. 13-3371
Rosebrough v. Buckeye Valley

        Rosebrough points to several sources of indirect evidence that she claims, taken together,

demonstrate adverse action by Buckeye Valley. Principally, she complains that beginning with

Cope’s initial invitation to apply for the bus driver position, it took seven months for her to

complete her training and qualify for the CDL examination. This length of time—combined

with other characteristics of her training experience—leads Rosebrough to conclude that

Buckeye Valley never really wanted her to obtain the CDL or gain employment as a bus driver in

the first place.

        The seven-month delay Rosebrough identifies is, in turn, composed of two distinct sub-

phases. First, there is the four-month period Rosebrough was required to wait before beginning

bus-driver training (a delay occasioned by the Department of Education’s ‘waiver’ requirement

for limbless drivers). Second, Rosebrough objects to the length and conditions of the training

period itself.

        Beginning with the pre-training delays, we find no record evidence to support

Rosebrough’s claim of adverse action during this period, that is, evidence that Buckeye Valley

obstructed her efforts to begin bus driver training or obtain a disability waiver from the Ohio

Department of Education. In fact, Rosebrough appears to abandon this argument, stating in her

reply brief: “Appellant’s litigation is about being denied the opportunity to test for her CDL, not

that she was denied becoming a trainee.”

        Even if not abandoned, however, the claim fails. The Ohio Department of Education, not

Buckeye Valley, had responsibility for the waiver process, see Ohio Admin. Code 3301-83-07

(2012), and most of the delays Rosebrough experienced were the result of her own actions, such

as seeking a medical opinion from an unauthorized provider and omitting required information

from the waiver form. Although she attempts to blame Cope for these mistakes and omissions,

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No. 13-3371
Rosebrough v. Buckeye Valley

Rosebrough’s deposition testimony indicates that Cope played a minimal role in the waiver

process beyond providing the initial forms and directing Rosebrough’s questions to the

Department of Education. Rosebrough also concedes that she did not read the waiver form when

filling it out. As a result, the delay in obtaining a waiver and beginning training cannot be

causally linked to Buckeye Valley and, thus, fails to constitute an adverse employment action

under Lewis’s “but-for” causation standard. 681 F.3d at 318.

       Rosebrough directs more attention to Buckeye Valley’s actions during the training

period—actions she claims interfered with her training and prevented her from testing for her

CDL. Here, too, we conclude that Rosebrough has failed to make out a prima facie case of

discrimination, because the record contains no factual basis for an inference that Buckeye Valley

took action to prevent Rosebrough from testing for the CDL. Instead, the record indicates that

after recruiting and training Rosebrough for the position of bus driver, Buckeye Valley was

prepared to reschedule the CDL exam at her convenience and to hire her if she passed. That the

CDL test never occurred is, again, traceable only to Rosebrough’s actions—namely, her decision

not to reschedule the test, despite her trainer’s invitation to do so. As a result, Rosebrough’s

abandonment of the CDL test cannot be attributed to Buckeye Valley and thus does not satisfy

the adverse action element of her prima facie case.

       Rosebrough makes several arguments to the contrary, none of which we find persuasive.

       First, Rosebrough contends that her training took longer than that of a non-disabled

fellow-trainee, and that this supports an inference of unequal treatment. We do not find that this

raises a triable fact question, however, because this trainee was both an auto-mechanic and an

amateur race-car driver.     He therefore had substantially greater driving and automotive

experience than Rosebrough, and comparing his experience to Rosebrough’s would be a case of

                                               -9-
No. 13-3371
Rosebrough v. Buckeye Valley

apples to oranges. Moreover, their difference in training time was only modest: Rosebrough’s

training occurred on nine separate dates spread across an eight week period; the mechanic/race

car driver’s training occurred on seven dates over a five week period.

       Second, Rosebrough points to various clerical errors contained in her daily training

sheets. She asserts that these errors reveal such sloppiness on the part of her trainers as to

support an inference that they intended for her training to fail. This claim is rebutted, however,

by the fact that she did succeed in completing training and, in fact, was qualified to take the CDL

test. Once training was completed, only one form (known as a T-9 form) was required as proof

of Rosebrough’s qualification to take her CDL exam and, at that point, any error in the daily

training logs became immaterial. Nor is it probative that Rosebrough’s T-9 form remained

partially incomplete at the time she abandoned her efforts to obtain a CDL; Carper testified that

she was in the process of completing the T-9 when Rosebrough demanded that the form—and

her other training materials—be returned to her.

       Next, Rosebrough directs us to Presley’s hurtful comments about her missing hand—

comments made during Rosebrough’s February 5 and 9 training sessions—-as evidence of

Buckeye Valley’s hostility towards her.      Taking the record in the light most favorable to

Rosebrough, we agree that Presley’s comments showed a lack of sensitivity about Rosebrough’s

disability. We disagree, however, that this raises a triable issue of fact regarding disability

discrimination. Carper, not Presley, was the trainer primarily responsible for Rosebrough’s

training, and Rosebrough does not allege (and the record does not show) that Carper ever made

insensitive comments about Rosebrough’s disability. Furthermore, once Rosebrough completed

her training and received clearance to take the CDL test, whatever ill-will existed between her




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No. 13-3371
Rosebrough v. Buckeye Valley

and Presley was of no further relevance to Rosebrough’s ability to obtain the required license

and become a driver.

       Finally, Rosebrough argues that Buckeye Valley “told [her] she would be tested when her

trainer knew it was not possible due to the lack of substitute drivers” and that this deception

evidences Buckeye Valley’s intent that the testing never occur. In our view, the record does not

support such an inference. When, on March 14, Carper and Rosebrough scheduled the CDL test,

Carper could not have foreseen what the staffing situation would be a week later, on March 20.

Despite a general shortage of bus drivers within the district (the same shortage that led to

Rosebrough’s recruitment), Carper and Cope had apparently been successful in finding substitute

drivers on short notice in the past, and it is therefore not the case that Carper “knew” that the

March 20 exam date was impossible at the time she scheduled it. Rosebrough also casts blame

on Cope for preventing Carper from “splitting” her route so as to accommodate the exam, but

Rosebrough points to no evidence that anything other than the undisputed driver shortage was to

blame for Cope’s decision. That decision, which prioritized transporting children to school over

accommodating Rosebrough’s exam, strikes us as eminently reasonable. Additionally, it is

undisputed that Carper not only suggested rescheduling the CDL test, but proposed alternative

times when the shortage of bus drivers would not cause interference, such as on a weekend or

afternoon. Far from betraying the intention of thwarting Rosebrough’s CDL test, Carper’s

suggestions indicate a desire to see the test occur promptly.

       In short, the record contains no facts suggesting an effort by Buckeye Valley to obstruct

Rosebrough from taking her CDL exam or becoming a bus driver. On the contrary, it shows that

Buckeye Valley was ready and willing to assist her in taking the exam, if only she had

rescheduled for a time when spare drivers and buses were available. Rosebrough has thus failed

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No. 13-3371
Rosebrough v. Buckeye Valley

to show that Buckeye Valley took an adverse action against her, a shortcoming that is fatal to

each of her ADA claims, as well as her corresponding claims under the Ohio Revised Code.

                                          CONCLUSION

       For the reasons set out above, the judgment of the district court is AFFIRMED.




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