                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0581n.06

                                        Case No. 16-5195
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                           Oct 25, 2016
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk



JIMMY MATHIS,                                       )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
CITY OF RED BANK,                                   )       TENNESSEE
                                                    )
       Defendant-Appellee.                          )
                                                    )
                                                    )

       BEFORE: STRANCH and SUTTON, Circuit Judges; STEEH, District Judge.*

       SUTTON, Circuit Judge. In 1997, the City of Red Bank hired Jimmy Mathis to work as

a laborer for its Department of Public Works. He worked his way up to Assistant to the Public

Works Director in 2002, a title he held for over ten years, even as the responsibilities of his job

evolved. Mathis was diagnosed with lupus in 2012. The City started the interactive process

required by the Americans with Disabilities Act to determine how, if reasonably possible, it

could accommodate his disability. In response to a question from the City about whether Mathis

could perform a job that included any work outside, Mathis’s doctor said: “[M]y simple reply is

that he must work only indoors, period. . . . The disease is a lifelong genetic disorder triggered

by ultraviolet light. . . . Only God knows whether he can tolerate sun exposure at all or if so how

much.” R. 11-21. Because Mathis’s doctor concluded that his work must be indoors and


* The Honorable George Caram Steeh, United States District Court Judge for the Eastern District
of Michigan, sitting by designation.
Case No. 16-5195
Mathis v. City of Red Bank
because no such jobs were available for which he was qualified, the City had to lay him off.

Mathis filed this lawsuit in response, seeking damages under the Americans with Disabilities

Act. The district court granted summary judgment for the City because it had done all it could

reasonably do to accommodate Mathis’s disability. We agree and affirm.

                                                I.

        Mathis started working for the City as a Laborer in 1997. In July 2002, after five years of

moving among three other jobs within the Department, he became Assistant to the Director of

Public Works. He held that title consistently, but the job’s responsibilities did not remain

constant. He initially “fill[ed] in the gaps[,] doing whatever work needed to be done.” R. 16 at

3. That included inspecting for building-code violations, handling animal-control problems,

overseeing streetscaping projects, working on easements, handling citizen requests, and

coordinating maintenance.

        In 2009, the Department drafted a formal description of Mathis’s job. The essential

functions of the job included indoor work, such as “answer[ing] calls,” “set[ting] up for

meetings” and “assist[ing] with garbage fee billing,” as well as outdoor work, such as

supervising the “[c]ommunity service [program for] felons,” “[e]nforc[ing] housing code

requirements [by] clean[ing] up yards and remov[ing] vehicles that are inoperable,” doing

“[b]uilding maintenance,” and “[a]ssist[ing] with [i]nspections and permits.” R. 16-2 at 60. One

of the listed adverse conditions of the job was “[e]xposure to temperature extremes—frequent.”

Id. at 61.

        That job description held true until the summer of 2011, when a new Public Works

Director gave Mathis more responsibilities for code inspections, a task that required him to spend

even more time outside. Mathis’s outdoor assignments increased still more in the fall of 2011,



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Case No. 16-5195
Mathis v. City of Red Bank
and yet more in January 2012, when his desk was moved from City Hall to the Public Works

Garage. In the garage, Mathis could no longer field citizen phone calls or do the administrative

work he had done before, and those tasks were reassigned to other employees.

       With more outdoor work, a skin condition that Mathis thought to be poison ivy worsened.

He sought medical attention. At the end of February 2012, Mathis notified the City that he had

been diagnosed with lupus, after which he requested leave under the Family and Medical Leave

Act, 29 U.S.C. § 2601. On March 20, Dr. C. Rodney Susong, Mathis’s dermatologist, completed

the FMLA certification form and described Mathis’s diagnosis. Mathis’s essential job functions

(as described in the employer portion of the FMLA form) were “Community Service Program,

Codes Enforcement, Building Maintenance,” and Dr. Susong noted that Mathis would be unable

to perform his job functions because he “w[ould] need to be indoors” and because he would have

to be absent during any flare-ups. R. 11-17 at 2–3.

       Mathis took an indefinite leave. During his absence, the Department restructured its

workflow. “[T]he Community Service Program went away. A codes enforcement officer was

hired. Building maintenance was just folded into the regular day to day operations of Public

Works. There was no [longer an] Assistant to the Public Works Director.” R. 16-2 at 15. When

Mathis was preparing to return to work after six months on leave, he met with the Public Works

Director and the City Manager and says he was told that his duties “would be helping with

general codes, maintenance and very little sun exposure, just in and out of vehicles.” R. 16-3 at

19. But his actual duties turned out to be primarily outdoor work, including weeding, painting,

and working on the garbage truck.

       Though this outdoor work purportedly exacerbated his medical condition, Mathis did not

ask for a change in duties. He instead purchased protective clothing and, after presenting a note



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Case No. 16-5195
Mathis v. City of Red Bank
from his doctor, was allowed to wear ultraviolet light-protective shirts rather than the standard

department uniform. He initially purchased these shirts himself, but the City eventually offered

to pay for them. All of this occurred before May 2013, when Mathis asked the City to “limit the

amount of time he is in the sun” and provided a note from Dr. Susong in support of his request.

R. 16-2 at 79.

       The protective clothing did not keep Mathis’s symptoms at bay. In June 2013, he sought

a new FMLA certification from human resources, which, at the direction of the Director of

Public Works, described Mathis’s job’s essential functions as weeding and mowing. Dr. Susong

completed the form in June, explaining that Mathis “cannot work outside due to lupus. . . . He

does wear protective clothing . . . but this may not be sufficient.” R. 11-19 at 2. Dr. Susong also

said that Mathis “should be fine to work indoors” and “must avoid sunlight.” Id. at 3. The new

city manager, unsure exactly what restrictions Dr. Susong wanted to impose, sent a letter asking

for clarification. The letter ended with this question: “Is it your recommendation that Mr.

Mathis be limited to working only indoors with no outside work permitted?” R. 11-20 at 1.

       Dr. Susong answered: “[M]y simple reply is that he must work only indoors, period. . . .

[T]his disease is a lifelong genetic disorder triggered by ultraviolet light. . . . Only God knows

whether he can tolerate sun exposure at all or if so how much. I am not willing to risk this

disease flaring with sun exposure that can result in significant injuries.” R. 11-21 at 1.

       That medical opinion left the City with two options: find Mathis some indoor work or

lay him off. The City Manager met with the Director of Public Works to figure out whether

there was any indoor job for which Mathis was qualified. The two vacant jobs at the time were

Administrative Assistant and Garbage Truck Driver. Mathis wasn’t qualified for either job,

because he lacked the requisite computer skills and a Commercial Driver’s License. Because Dr.



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Mathis v. City of Red Bank
Susong told the City that Mathis could not safely perform his current job, and because there were

no vacant positions available to Mathis, the City fired him on July 9, 2013.

       After exhausting his administrative remedies before the Equal Employment Opportunity

Commission, Mathis sued, alleging that the City had violated the Americans with Disabilities

Act by firing him, by failing to restore him to the pre-2011 version of his job as Assistant to the

Public Works Director (which Mathis now claims would have accommodated his lupus), and by

subjecting him to a hostile work environment. See 42 U.S.C. § 12101. After the City removed

the case to federal court and the parties exchanged written discovery, the district court granted

summary judgment to the City.

                                                II.

       Mathis raises two issues on appeal. He claims the City failed to accommodate his

disability by refusing to restore him to the early-2011 version of his job, and that it failed to

engage in the mandatory interactive process in good faith. We disagree on both counts.

       Reasonable accommodation. The Americans with Disabilities Act forbids employers

from discriminating on the basis of disability. 42 U.S.C. § 12112(a). To establish a prima facie

case that the City violated the Act, Mathis must show that “he is disabled and otherwise qualified

for the position, either with or without reasonable accommodation.” Keith v. Cty. of Oakland,

703 F.3d 918, 923 (6th Cir. 2013).         Mathis “bears the initial burden of proposing an

accommodation and showing that that accommodation is objectively reasonable.” Hedrick v. W.

Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004). As part of that burden, Mathis must show

that he “can perform the essential functions of the position held or desired, with or without

reasonable accommodation.” Burns v. Coca-Cola Enterps., Inc., 222 F.3d 247, 256 (6th Cir.

2000). The short answer is that Mathis cannot clear this hurdle, because Dr. Susong demanded



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Mathis v. City of Red Bank
exclusively indoor work, and even the early-2011 version of Mathis’s job involved significant

outdoor work.

       The longer answer requires us to account for Mathis’s arguments. He first contends that

the City should have allowed him to occupy the Assistant to the Public Works Director position

as it existed “prior to late 2011.” Appellant’s Br. 38. That proposal fails because the essential

functions of that job couldn’t have been accomplished inside. Dr. Susong’s letter to the City

could not have been clearer about Mathis’s limitations:          “He must work only indoors,

period. . . . Only God knows whether he can tolerate sun exposure at all or if so how much.”

R. 11-21. It was indoor work or no work.

       The essential functions of the Assistant to the Public Works Director position required

outdoor work. See Hoskins v. Oakland Cty. Sherriff’s Dep’t, 227 F.3d 719, 726 (6th Cir. 2000).

“Evidence of whether a particular function is essential includes but is not limited to: (i) The

employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared

before advertising or interviewing applicants for the job; [and] (iii) The amount of time spent on

the job performing the function.” 29 C.F.R. § 1630.2(n)(3).

       At least four of the essential functions in the formal job description that the Department

drafted in 2009 require outdoor work:         supervising “[c]ommunity service [for] felons,”

“[e]nforc[ing] housing code requirements [by] clean[ing] up yards and remov[ing] vehicles that

are inoperable,” “[b]uilding maintenance,” and “[a]ssist[ing] with [i]nspections and permits.”

R. 16-2 at 60. Mathis’s own testimony and affidavit all confirm that some outdoor work was

required to do this work.      He told the Tennessee Department of Labor and Workforce

Development that, even prior to 2011, he would at times spend four-and-a-half to five hours a

day outside. His deposition and his affidavit say the same thing. So do other affidavits that



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Case No. 16-5195
Mathis v. City of Red Bank
Mathis submitted at summary judgment. No reasonable jury could conclude that the job Mathis

asked for fell within the “only indoors” parameter set by his doctor.

       Even though Mathis did not request it, the City considered accommodating Mathis by

transferring him to Garbage Truck Driver or Administrative Assistant. The City found that he

was not qualified for either job, and Mathis does not challenge the point.

       Mathis now claims that limited outdoor exposure with protective clothing would

accommodate his condition. But that request cannot be reconciled with what Dr. Susong told the

City at the time. The 2013 letter, not an affidavit by Dr. Susong filed after the City’s motion for

summary judgment, defined the City’s options for accommodating Mathis. To hold otherwise,

and to accept Dr. Susong’s after-the-fact characterization of Mathis’s limitations, would

encourage employers to doubt the necessity of accommodations demanded by doctors until the

extent of disability was confirmed by a court. Pushing employees into litigation to prove that an

accommodation is necessary would create a significant burden for employers and employees.

And it would undermine the informal, good faith discussion of accommodation that the

Americans with Disabilities Act envisions. See Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d

862, 871 (6th Cir. 2007). The City rightly assumed that the parameters established in Dr.

Susong’s 2013 letter were accurate, and on that basis it properly understood its choice: give

Mathis a job with exclusively indoor work or lay him off.

       “An employer or other covered entity is not required to reallocate essential functions” to

accommodate a disabled employee. 29 C.F.R. § Pt. 1630, App.; see also Burns, 222 F.3d at 257;

Hedrick, 355 F.3d at 457; Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir. 1998).

Yet Mathis’s request to return him to earlier job responsibilities amounts to just that. His

essential functions had changed significantly between early 2011 and early 2012—before he was



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Case No. 16-5195
Mathis v. City of Red Bank
diagnosed and before he reported his disability. Starting in the summer of 2011, Mathis’s

responsibilities shifted to include more outdoor building and code inspections. The outdoor

work increased even more through the fall, and in the winter the City gave Mathis’s phone-

answering and administrative responsibilities to others and moved him to the Public Works

Garage. The Assistant to the Public Works Director position was largely an outdoor job when

Mathis discovered and informed the City of his disability. Giving Mathis primarily indoor work,

even in March 2012, would have required a significant reshuffling of essential functions within

the Department of Public Works—moving some of Mathis’s work to others and giving some

new functions to Mathis. The Americans with Disabilities Act doesn’t require employers to go

that far. See 29 C.F.R. § Pt. 1630, App.

       Mathis’s reasonable accommodation claim fails most plainly because the need for an

accommodation was not apparent until mid-2013, when his limitations would not have allowed

him to perform his desired job’s essential functions. But it also appears that no accommodation

would have been available even if Mathis had requested one in early 2012, because the job he

desired no longer existed. No reasonable jury could find the City liable for failing to provide a

reasonable accommodation, because no reasonable accommodation was available.

       Interactive process. When a disabled employee requests an accommodation, the Act

requires employers “to initiate an informal, interactive process with the [employee]” to

“determine the appropriate reasonable accommodation.” 29 C.F.R. § 1630.2(o)(3). Both parties

are obliged to engage in the process in good faith. Kleiber, 485 F.3d at 871. Mathis claims that

the City violated that duty by failing to seek out an accommodation in March 2012, when it first

became aware of his condition. We disagree.




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Mathis v. City of Red Bank
       As an initial matter, Mathis has not established that a reasonable accommodation was

available in 2012 or 2013. “[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.” Arthur v. Am. Showa, Inc., 625 F. App’x 704, 711

(6th Cir. 2015); see Ozlowski v. Henderson, 237 F.3d 837, 840 (7th Cir. 2001); Kleiber v. Honda

of Am. Mfg., Inc., 420 F. Supp. 2d 809, 826 (S.D. Ohio 2006). That reality presents one obstacle

to his claim.

       There is another. Even assuming that a reasonable accommodation might have been

possible in 2012, he cannot claim bad faith in an interactive process that he never initiated. “In

general . . . it is the responsibility of the individual with a disability to inform the employer that

an accommodation is needed.” 29 C.F.R. § Pt. 1630, App. The employer’s duty to engage in the

interactive process arises only after an employee proposes a reasonable accommodation or shows

the need for one. See Burns, 222 F.3d at 258; Arthur, 625 F. App’x at 711.

       Mathis argues that his initial FMLA certification also notified the City of the need for an

accommodation. But when he told the City of his condition in March 2012, and Dr. Susong

indicated that “he will need to be indoors,” Appellant’s Br. 32, Mathis was not actually asking

for any accommodation at work—indoor work, protective clothing, or his early-2011 job. He

instead was asking for leave under the FMLA, which the City granted. When he returned to

work six months later (at which point his condition may have been significantly better or worse),

Mathis did not request a change of duties or a transfer to another position. Before resuming

work, Mathis discussed his return with the Public Works Director and agreed to go back to his

office in the Public Works Garage, which he knew involved at least some outside work and

essential functions different from his position as it existed in early 2011. And when the City



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Mathis v. City of Red Bank
assigned him to the garbage truck and other outdoor work, he did not object. His silence through

late 2012 and early 2013 settles the issue. In the absence of a request for an accommodation, the

City had no duty to engage in the interactive process.

       Mathis handed in a new FMLA form in June 2013. This time, Dr. Susong’s description

of Mathis’s condition, combined with Mathis’s prior submission of a doctor’s note regarding the

need for protective clothing, made clear that an accommodation would be necessary at work

regardless of whether Mathis took more leave. The City read the form as notice of the need for

an accommodation, then did what the Act requires. The City Manager sought clarification from

Dr. Susong in order to understand what work Mathis could safely do. That led to Dr. Susong’s

emphatic demand that Mathis do no outside work, which in turn left the City with no reasonable

options to accommodate him.

       For these reasons, we must affirm.




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