               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0716n.06

                                          No. 13-5055                                 FILED
                                                                                  Aug 02, 2013
                         UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


JOHN D. TURNER,                                 )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
CITY OF PARIS, KY,                              )   EASTERN DISTRICT OF KENTUCKY
                                                )
       Defendant-Appellee.                      )




       Before: BATCHELDER, Chief Judge; COOK, Circuit Judge; O’MALLEY, Circuit Judge.*


       COOK, Circuit Judge. Plaintiff-Appellant John Turner appeals the district court’s grant of

summary judgment to defendant, City of Paris, Kentucky (the “City”), dismissing his Americans

with Disabilities Act-based claim (“ADA”). 42 U.S.C. § 12101 et seq. Turner asserts that the City

should have offered him permanent employment at its recycling plant after a back injury rendered

him unable to perform his duties at the City’s wastewater treatment facility. We AFFIRM.


                                               I.


       Turner began working at the City’s wastewater treatment plant in September 2006 as a

collections operator. In April 2010, Turner injured his back while installing a section of pipe,

       *
        The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of
Appeals for the Federal Circuit, sitting by designation.
No. 13-5055
Turner v. City of Paris


leaving him unable to lift more than 20 pounds occasionally or 10 pounds frequently. The City’s

workers’ compensation insurance covered Turner’s medical treatment. After taking some time off

to heal, Turner resumed working by the end of the month. Turner eventually recovered to the point

of being able to lift 30 pounds occasionally and 10 pounds frequently (30/10 lifting restrictions).

Accounting for Turner’s physical limitations, the City temporarily assigned him to “light duty” work,

first at the wastewater plant and then in the City’s recycling center. Turner understood this to be a

temporary arrangement, as he put it, “[un]til further notice.” Around the same time, two other City

employees—George Wheeler and David Caswell—began working in the recycling center due to

work-related injuries. Wheeler began his four-month stint at the recycling center in 2010, while

recovering from a back injury. Caswell’s injury occurred in late December 2010, consistent with

Wheeler’s recollection that Caswell started working at the recycling center after Turner.


       Employees’ responsibilities at the recycling center fit into three general categories: receiving,

sorting, and baling recyclables brought into the plant from several sources. The receiving duties

entail unloading herbies (rolling trash cans) twice a day, three days per week. Unloading the herbies

requires lifting them over a “pretty good size lip” onto the loading dock and, once loaded,

maneuvering them around the recycling plant. Though generally considered “light” work, the full

herbies’ weight exceed Turner’s restrictions, and he often enlisted others to lift the herbies onto the

dock for him. Gary Barbee, the recycling center supervisor, further observed: “the herbies were

frequently heavy and, in order to move one, a worker would have to tilt it back, pull it to where it

needed to be and then lift it back up to an upright position.” The receiving function also calls for

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Turner v. City of Paris


accepting recycling deliveries directly from the City’s residents. The residential deliveries, which

come into the facility daily, require workers to lift and unload recycling bags weighing between 30

to 50 pounds.


       Several City employees testified that running the plant is generally a two-person job. Turner

suggests, however, that the recycling center supplies work for three full-time workers, though he

mentions he “was frequently the only employee working at the recycle center.”


       Several months after his reassignment, Turner’s wife suffered a head injury, prompting him

to take time off under the Family and Medical Leave Act (“FMLA”). By October 2010, Turner’s

treating physician, Dr. Thomas Menke, concluded that Turner’s improvement reached a plateau, and

recommended permanent 30/10 lifting restrictions. After learning that Turner’s restrictions became

permanent, the City shifted its focus from temporary to permanent accommodation.


       As a follow-up to Menke’s recommendation, the City requested Turner consult a second

physician, Dr. James Ferrell, to gauge his recovery and evaluate future accommodations. Although

Ferrell originally suggested that weight loss could improve Turner’s condition, he later clarified that

“[w]eight loss will not change the damage” but would “reduce the risk of further damage.”

Ultimately, Ferrell agreed with Menke’s recommended permanent restrictions.


       Reviewing the doctors’ assessments, the City concluded that Turner could not perform the

essential functions of his former position at the wastewater treatment plant. Concluding that Turner


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Turner v. City of Paris


lacked the necessary qualifications for any available vacancy, the City fired him in March 2011.

Following an unsuccessful appeal, Turner sued the City for ADA violations, adding FMLA-

retaliation, and workers’ compensation retaliation charges under the Kentucky Civil Rights Act, KRS

§ 342.197. Moving for summary judgment, the City argued that (1) Turner could not perform the

essential functions of his job with or without a reasonable accommodation, (2) he was unqualified

for the available vacancies, and (3) the City made good-faith efforts to identify a reasonable

accommodation for Turner’s permanent lifting restrictions. Refuting Turner’s retaliation claims, the

City pointed to the lack of evidence linking Turner’s discharge with his medical leave or workers’

compensation claim. Turner timely appeals the district court’s ADA decision, but abandons his

retaliation claims on appeal. See United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006)

(“An appellant abandons all issues not raised and argued in its initial brief on appeal.”) (internal

quotation marks omitted).


                                                  II.


A. Standard of Review


        We review de novo the district court’s summary judgment grant, Kalich v. AT&T Mobility,

L.L.C., 679 F.3d 464, 469 (6th Cir. 2012), affirming if, viewing the record in the light most favorable

to the nonmoving party, there remain no genuine disputes of material fact and the moving party is

entitled to judgment as a matter of law, Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

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B. Turner’s ADA Claim


         The ADA bars employers from discriminating against a “qualified individual on the basis of

disability.” 42 U.S.C. § 12112(a). The KCRA deploys a substantially similar standard and does not

need a separate analysis. See Bryson v. Regis Corp., 498 F.3d 561, 574 (6th Cir. 2007). The plaintiff

shoulders the initial burden of showing that he is disabled and “otherwise qualified” for the position,

either without accommodation from the employer, with an alleged essential job requirement

eliminated, or with a proposed reasonable accommodation. Kleiber v. Honda of Am. Mfg., Inc., 485

F.3d 862, 869 (6th Cir. 2007). Once the plaintiff establishes a prima facie case, the burden shifts to

the employer to show that the “challenged job criterion is essential” or that the “proposed

accommodation will impose an undue hardship upon the employer.” Id. (internal quotation marks

omitted). The City concedes that Turner fits the ADA’s “disability” definition, but nevertheless

argues that it could not reasonably accommodate him because he was not qualified for any vacant

position. In response, Turner argues that, had the City taken up his request for a ramp, which Turner

considers a reasonable accommodation, he would have been qualified for a permanent position at

the recycling center. Finally, Turner questions the City’s engagement in the ADA’s interactive

process. Because we agree with the district court’s finding that the recycling center had no

vacancies, we need not decide whether Turner possessed the necessary qualifications for a position

there.




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       1. The City’s Vacant Positions


       While the ADA mandates “reasonable accommodations,” such as a transfer, for an

employee’s disability, an employer need not displace another employee, waive essential job

requirements, or create a new position to make room for a disabled worker. Burns v. Coca-Cola

Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000). Indeed, the statute specifically uses the words

“reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B) (emphasis added). As the district

court correctly noted, the City lacked such a vacancy. Turner’s comeback—that two recycling-center

employees retired around the time of his injury and reassignment, and the City should have enlisted

him for these vacant positions—misses the mark. For one, Turner points to vague, secondhand

testimony to support the existence of these openings. In fact, the only retiree he could identify was

John Sievers, and even then Turner could not pinpoint when Sievers retired. City records clarified

this point, confirming that Sievers took medical leave in November 2010, but did not retire until a

month after Turner’s March 2011 discharge. To prove the second alleged vacancy, Turner turned

to Wheeler’s testimony, which identified “Albert” Taylor (whose name actually is Alvin Taylor) as

the second retiring employee. But Wheeler could only guess that Taylor retired around 2009 or

2010. Wheeler’s testimony regarding the timing of Taylor’s departure, however, conflicts with the

record, which shows that Taylor retired in December 2005.


       Turner now admits that Sievers “did not formally retire until April of 2010.” (Appellant Br.

at 21.) Nevertheless, he presses that the City knew Sievers’ position would “become vacant in a


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Turner v. City of Paris


short period of time.” (Id. (quoting Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir.

1996)).) Defining “a short period of time” naturally follows. In Monette v. Electronic Data Systems

Corp., this court suggested that a one-week period suffices, but emphasized that employers are not

required to keep a disabled employee “in the hope that some position may become available some

time in the future.” 90 F.3d at 1187. Turner offers no evidence, no concrete time line, suggesting

the City knew Sievers’ position would become available within a “short period of time,” such as a

week. Taking some liberties with the record, Turner cites Wheeler’s deposition for the proposition

that “it was well known Sievers was not returning to work.” But nothing in Wheeler’s deposition

supports this conclusion; all that this testimony suggests is that Sievers worked at the center and

retired due to health reasons. On the key issue, Wheeler remained agnostic. Thus, the record yields

no questions of fact on the subject of available vacancies, and the City bears no liability as a matter

of law.


          2. Engagement in Interactive Process


          Turner faults the City for allegedly failing to “adequately engage in the interactive process,:

arguing that the City “fail[ed] to make a reasonable inquiry into Turner’s ability to continue his

employment at the recycle center,” and failed to reasonably consider his loading-ramp

accommodation. Turner’s apparent dissatisfaction with the City’s procedures discounts the fact that

it hired Ferrell for the sole purpose of evaluating Turner’s restrictions. Moreover, the City sent

Ferrell a follow-up letter to determine if weight loss could improve Turner’s condition. This inquiry


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came on the heels of a lengthy interactive process; Turner first took several weeks off work to

recover, returned to light duty work for six months during rehabilitation, and continued light work

for several months after Menke made the restrictions permanent. Though Turner maintains that the

City should have commissioned Ferrell to evaluate his physical fitness for the recycling post, this

claim, too, fails because it incorrectly assumes the center had a permanent vacancy. Because Turner

fails to point to any evidence to suggest that the City’s bad faith caused a breakdown of the ADA’s

interactive process, Kleiber, 485 F.3d at 871-72, we reject Turner’s final challenge.


                                                III.


       We AFFIRM the district court’s grant of summary judgment.




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