                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0754n.06
                            Filed: December 10, 2008

                                            No. 08-5113

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

DONALD TROUT,                                     )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    EASTERN DISTRICT OF TENNESSEE
AEROSPACE TESTING ALLIANCE, et al.,               )
                                                  )
       Defendants-Appellees.                      )
                                                  )


       Before: MARTIN and GILMAN, Circuit Judges; and DOWD, District Judge.*


       PER CURIAM. Donald Trout (Trout) appeals the district court’s order granting the

defendants’ motion for summary judgment. For the reasons set forth below, the district court’s order

granting summary judgment to Aerospace Testing Alliance is affirmed.


       Trout filed this action against four defendants, alleging that his employment was wrongfully

terminated based on his disability in violation of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12111 et seq., and based upon his age in violation of the Age Discrimination in Employment

Act of 1967 (ADEA), 29 U.S.C. § 622 et seq. and the Tennessee Human Rights Act (THRA), Tenn.

Code Ann. § 4-21-401 et seq. In response to defendants’ motion for summary judgment, Trout stated

that he did not intend to prove age discrimination at trial and that summary judgment was appropriate

        *
          The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern
 District of Ohio, sitting by designation.
 No. 08-5113
 Donald Trout v. Aerospace Testing Alliance, et al.


for all issues regarding age discrimination. Accordingly, the district court judge granted defendants’

motion for summary judgment as to Trout’s claims under the ADEA and THRA, and dismissed those

claims with prejudice.


        Trout also stated in response to defendants’ motion for summary judgment that defendant

Aerospace Testing Alliance (ATA) was his employer and that he would not pursue judgment against

the other defendants. Accordingly, the district court granted defendants’ motion for summary

judgment as to defendants Jacobs Sverdrup Constructors, Computer Sciences Corporation, and

General Physics Corporation and dismissed those claims with prejudice.


        Only Trout’s ADA claim against ATA remained to be determined on summary judgment. The

issues before the district court on summary judgment, and now before this Court, are: 1) whether

ATA violated the ADA by failing to make reasonable accommodation for Trout’s disability by

placing him in another position; and 2) whether ATA failed to engage in the required interactive

process to identify possible accommodations. In granting summary judgment, the district court

concluded that: 1) Trout had not demonstrated a genuine issue of material fact as to whether ATA

failed to transfer him to a vacant position for which he was otherwise qualified because Trout failed

to establish the existence of a genuine issue of material fact as to: a) the existence of a vacant position

to which ATA could have transferred him, and b) his status as a “qualified individual” for the tool

crib attendant position; and 2) ATA did not violate the ADA by failing to engage in an interactive




                                                   -2-
 No. 08-5113
 Donald Trout v. Aerospace Testing Alliance, et al.


process because Trout advanced no evidence that ATA acted in bad faith, and even if ATA had acted

in bad faith, Trout could not demonstrate that he could have otherwise been accommodated.




        It is undisputed that at all relevant times, Trout was disabled due to severe vision limitations.

It is also undisputed that his disability prevented him from working, with or without accommodation,

as a Power Equipment Serviceman (PES), the job for which he was hired by ATA. To his credit,

although Trout could no longer work as a PES, he nevertheless desired to continue to work. The

parties dispute whether ATA could reasonably accommodate Trout’s disability by transferring him

to a different position.


        A district court’s order granting summary judgment undergoes de novo review. Kleiber v.

Honda of Am. Mfg., 485 F.3d 862, 868 (6th Cir. 2007) (citing DiCarlo v. Potter, 358 F.3d 408, 414

(6th Cir. 2004)). When reviewing the district court’s decision granting summary judgment, we view

all evidence in the light most favorable to the non-moving party. Summary judgment is proper when

no genuine issue of material facts exist and the moving party is entitled to judgment as a mater of law.

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


        In determining whether ATA violated the ADA by failing to transfer Trout to an open position

for which he was qualified, the first step in the analysis is whether there is a genuine issue of material

fact as to the whether there was a vacant position available. Kleiber, 485 F.3d at 869. The second


                                                   -3-
 No. 08-5113
 Donald Trout v. Aerospace Testing Alliance, et al.


step in the analysis is whether, even if a vacancy existed, there is a genuine issue of material fact as

to Trout’s qualifications for the open position. Id. at 870. Trout contends that there was a vacant tool

crib attendant position for which he was qualified. However, having reviewed the record and the

applicable law, and with the benefit of the parties’ briefs and oral argument, we cannot conclude that

a reasonable jury could find that a vacant position existed, or that even if it existed, Trout was

qualified for the position.


       In determining whether ATA violated the ADA by failing to engage in an interactive process

to identify potential reasonable accommodations, we must determine whether there is a genuine issue

of material fact as to whether ATA engaged in a good faith process to identify Trout’s limitations

resulting from the disability and potential reasonable accommodations. Id. at 871. Trout contends

that he repeatedly contacted ATA to determine if there was another position for which he was

qualified and was told that he would be contacted if any positions became available, but that no one

from ATA ever contacted him. Having reviewed the record and the applicable law, and with the

benefit of the parties’ briefs and oral argument, we cannot conclude that a reasonable jury could find

that the ATA did not act in good faith to identify reasonable accommodations for Trout.**




        **
            The Court earlier concluded that Trout failed to establish there was a vacancy for which
 he was qualified by which to accommodate his disability. Therefore, even if ATA did not engage
 in a good faith interactive process, appellant cannot prevail on this point because Trout would be
 unable to establish that he could have been accommodated but for ATA’s failure to engage in the
 interactive process.

                                                  -4-
No. 08-5113
Donald Trout v. Aerospace Testing Alliance, et al.


       In conclusion, we affirm the district court’s order granting summary judgment to defendant

ATA.




                                              -5-
