                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0414n.06

                                             No. 09-3164
                                                                                       FILED
                           UNITED STATES COURT OF APPEALS                           Jul 12, 2010
                                FOR THE SIXTH CIRCUIT                        LEONARD GREEN, Clerk


RASHAWN MANIGAN,                                  )
                                                  )
       Plaintiff-Appellant,                       )        ON APPEAL FROM THE
                                                  )        UNITED STATES DISTRICT
v.                                                )        COURT FOR THE SOUTHERN
                                                  )        DISTRICT OF OHIO
SOUTHWEST OHIO REGIONAL                           )
TRANSIT AUTHORITY,                                )
                                                                     OPINION
                                                  )
      Defendant-Appellee.                         )
______________________________


Before: MARTIN, BOGGS, and WHITE, Circuit Judges.

     HELENE N. WHITE, Circuit Judge. Plaintiff Rashawn Manigan appeals the district court’s

order granting summary judgment to his former employer, defendant Southwest Ohio Regional

Transit Authority (SORTA), and dismissing his suit brought under the Americans with Disabilities

Act (ADA), 42 U.S.C. §12101 et seq., and Ohio’s Civil Rights Act, OHIO REV. CODE ANN. §

4112.02(A). We AFFIRM.

                                                  I

       The facts set forth by the district court are not disputed:

               In October of 2003, Plaintiff Rashawn Manigan began working as a bus driver
       for Defendant SORTA. Since 1992, Manigan has had an artificial right knee and
       partially artificial right hip as the result of a car accident. In 2005, Manigan was
       wearing knee braces on both knees except when resting at home. Manigan was also
       wearing an ankle/foot orthosis on his left ankle and foot, and was not able to walk
       more than a few feet without this appliance. Manigan had also been using a cane
       since his accident, and needed it to walk almost every day. Even with these
No. 09-3164
Manigan v. SORTA

     appliances, Manigan was unable to walk more than approximately fifty yards without
     stopping, and had to walk at a pace slower than that of an average person.

             SORTA’s bus drivers are represented by a union. Under the collective
     bargaining agreement between SORTA and the union, seniority is based on date of
     hire. Drivers are able to select their work assignments four times per year based upon
     seniority. Drivers can pick to be a “regular operator” or a “sub-operator.” A sub-
     operator is used to cover for regular operators. Sub-operators pick their work
     assignments in order of seniority on a weekly basis. Sub-operators can pick from
     either the “Hold-down” or “Rotating Board.” The Hold-down Board consists of the
     runs of regular operators who are on leave. On the Rotating Board, drivers pick their
     days off and are then assigned runs on a daily basis.

             Manigan worked as a sub-operator and preferred to work from the Rotating
     Board because he was rarely assigned a run which required him to drive more than
     eight hours per day. Manigan was restricted by his doctor from driving more than
     eight hours per day. In 2004, Manigan’s supervisor was Robert Broadnax. Broadnax
     ensured that Manigan did not drive more than eight hours by allowing Manigan to
     exchange runs with another driver assigned to a shorter run at the same time. If
     Manigan could not exchange his run, Manigan would call for “sick relief” and
     Broadnax would find someone to finish out Manigan’s route which was in excess of
     eight hours.

              On January 27, 2005, Manigan’s doctor issued a note which stated: “Patient
     may not drive a bus more than 8 hours a day due to knee condition, until further
     notice.” Manigan claims that his new supervisor, Arnold Isham, was not
     accommodating his work restriction as Broadnax had done. On February 16, 2005,
     Manigan met with Vaughn Davis, the Director of Human Resources. Davis
     recommended that Manigan select a regular run that complied with his doctor’s
     restriction in the upcoming February divisional pick. Davis repeated this suggestion
     in a subsequent phone conversations [sic]. According to Manigan, such a route was
     not available because of his seniority. SORTA disputes this contention, and points to
     evidence showing that there were four drivers with lower seniority than Manigan who
     chose regular runs with driving times less than eight hours.[1]


      1
          In a footnote here, the district court stated:

      For the first time, in his Second Declaration attached to his Response in Opposition
      to SORTA’s Motion for Summary Judgment, Manigan states that the reason he did
      not pick these runs was because he missed his opportunity to make his pick. In his

                                                    2
No. 09-3164
Manigan v. SORTA

              At the same time, Manigan informed Isham that he would need to take medical
      leave to have knee surgery. Manigan provided Isham with paperwork from Manigan’s
      doctor which stated that Manigan would need to be on leave from April 22, 2005 until
      July 22, 2005.

              On March 21, 2005, Manigan wrote a letter to Davis acknowledging their
      initial meeting on February 16, 2005 and the subsequent telephone conversations
      regarding the accommodation of his eight-hour driving restriction. In the letter,
      Manigan states that his requested accommodation is an “assignment to a split run, or
      an extra run in combinations.”[2] Manigan also states: “Your solution was for me to
      try and pick a split run, or a route with a layover which would allow me to stand and
      stretch my legs at the layover is not a practical solution at this time.” [sic]

             On April 19, 2005, Manigan filed a grievance, claiming that SORTA was
      refusing to accommodate his doctor’s restriction and make an ADA accommodation.

              In May of 2005, Isham asked Manigan to undergo a fitness for duty
      evaluation. The doctor who performed the evaluation agreed with Manigan’s doctor
      that he should not drive a bus more than eight hours per day.

              On May 2, 2005, Isham sent a letter to Manigan stating:


       Second Declaration, Manigan explains that on February 16, 2005, he was scheduled
       to make his quarterly pick for the period of March to June of 2005. Manigan states
       that he had a meeting scheduled with Davis that afternoon. Manigan states that when
       the meeting ended, he went to make his pick, but was told that he had already been
       assigned to be a sub-operator, and they had moved on to the next pick. Manigan
       made no mention of “missing” his pick in his deposition.
                                                 ***
       After a motion for summary judgment has been made, a party may not create a
       genuine issue of material fact by filing an affidavit that contradicts earlier deposition
       testimony. Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986).
       Moreover, SORTA has presented the supplemental affidavit of John Schmidt which
       states that in the event that there was a problem with Manigan’s pick, there was a
       process called “backing up,” where a union representative could have helped to “back
       up” the process to correct the problem.
       2
        Manigan’s letter stated that he was not seeking a light duty assignment, but rather, to be
assigned to a split run, or a combination of extras [runs], ideally originating and ending at the
division garage.

                                                  3
No. 09-3164
Manigan v. SORTA

                  I spoke with Vaughn Davis regarding the ADA accommodation and
                  he stated he informed you that you do not have a valid ADA issue.

                  I denied the doctor’s note with the restriction on it, due to The Metro
                  does not have any type of light or restricted duty.

                  Grievance denied for the reasons stated above.

                  As I mentioned above The Metro doesn’t have any type of light or
                  restricted duty, yet you have offered in this grievance that you’re under
                  a doctor’s care with restriction. I sent you to The Metro’s doctor, who
                  after your physical exam and speaking with your doctor confirmed you
                  are under restriction preventing you from performing your duties. I
                  have no choose [sic] but to take you out of service until you summit
                  [sic] a note stating that you can work without any restriction.

       SORTA denied the grievance at each step, and the Union voted not to arbitrate the
       grievance.

               On May 6, 200[5], Isham sent a letter to Manigan informing him that his leave
       for his knee surgery had been approved and he would be on leave under the Family
       Medical Leave Act until July 22, 2005. However, Manigan elected to not have the
       surgery.

               During the next quarterly pick in May of 2005, Manigan selected a run which
       required less than eight hours of driving time. On June 7, 2005, Manigan’s doctor
       issued a note which stated: “Able to return to regular duty as a Metro bus driver.”
       Manigan returned to work on June 18, 2005. [R.E. 74/Opinion & Order filed 1/23/09,
       pp. 1-6. Internal citations omitted.]

       The district court granted SORTA’s motion for summary judgment, concluding that Manigan

failed to present evidence sufficient to establish that SORTA discriminated against him by failing to

provide a reasonable accommodation.3


        3
            The district court’s opinion and order states in pertinent part:

              Here, Manigan attempts to force SORTA to provide a specific
        accommodation in the face of SORTA’s offer of another reasonable accommodation.

                                                     4
No. 09-3164
Manigan v. SORTA

                                                 II

       This court reviews the grant of summary judgment de novo. Nance v. Goodyear Tire &

Rubber Co., 527 F.3d 539, 546 (6th Cir. 2008).

       Summary judgment will be affirmed if “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.” Fed. R.


        Manigan met with Davis in February of 2005. At that time, Davis told Manigan to
        find a run based on his seniority which would meet his eight-hour restriction.
        SORTA points to evidence showing that there were regular runs available in the
        February 2005 pick which would have made it possible for Manigan to stay within
        his driving restriction. The Court finds that such a run would have been a reasonable
        accommodation. Manigan instead picked to be a sub-operator. (Schmidt Aff. 16)
        Because Manigan rejected the regular runs which met his eight-hour driving
        restriction, he is no longer considered a qualified individual with a disability.

                 Manigan relies heavily on the May 2, 2005 letter from Isham denying his
        grievance to argue that SORTA refused to accommodate his disability. However,
        this letter was sent to Manigan after he had already been offered and rejected Davis’
        reasonable accommodation of picking a run in the February 2005 pick which met his
        eight-hour driving restriction. By May, SORTA chose to accommodate Manigan in
        a different manner, which was to take him “out of service” and place him on medical
        leave. While on leave, Manigan was able to select a run which met his eight-hour
        restriction in the next quarterly pick. . . .

                Manigan also argues that SORTA could have continued to accommodate him
        in the manner Broadnax had accommodated his eight-hour restriction. This argument
        assumes that SORTA was required to accommodate him in this manner . . . .
        ....
        As stated above, Broadnax’s proposed accommodation circumvented SORTA’s
        collective bargaining agreement with the union. As such, SORTA was not required
        to provide this accommodation. Therefore, the Court finds that Manigan has not
        presented sufficient evidence that SORTA discriminated against him by failing to
        provide a reasonable accommodation. Accordingly, Manigan is not entitled to
        summary judgment on the issue of liability, and SORTA is entitled to summary
        judgment on Manigan’s claim under the ADA. [R.E. 74, pp. 13-15, internal citations
        to record omitted.]

                                                 5
No. 09-3164
Manigan v. SORTA

       Civ. P. 56(c). If “a reasonable jury could return a verdict for the nonmoving party,”
       summary judgment for the moving party is inappropriate. In reviewing the district
       court’s decision, we draw all justifiable inferences in favor of the non-moving party.

McKnight v. General Motors Corp., 550 F.3d 519, 522 (6th Cir. 2008) (internal citations omitted).

       “The ADA prohibits employers from discriminating against qualified individuals with

disabilities in regard to hiring, advancement, discharge, or other terms, conditions, or privileges of

employment.” Bratten v. SSI Services, Inc., 185 F.3d 625, 632 (6th Cir. 1999) (citing 42 U.S.C. §

12112(a)). To establish a prima facie case of discrimination under the ADA, a plaintiff must show

1) that he is an individual with a disability, 2) who was otherwise qualified to perform a job’s

requirements, with or without reasonable accommodation, and 3) who suffered an adverse

employment action on the basis of disability. See Talley v. Family Dollar Stores of Ohio, Inc., 542

F.3d 1099, 1105 (6th Cir. 2008).

                                                 III

       We first observe that we agree with the district court that Manigan presented sufficient

evidence that he was disabled within the meaning of the ADA.4 We thus turn to the other aspects of

his ADA claim.

                                                  A

       Although the district court’s opinion is addressed to the accommodation aspects of the case,

Manigan argues that this is not a failure-to-accommodate case, and that SORTA’s discriminatory act



        4
        As the district court concluded, Manigan presented ample evidence that his problems with
his knees substantially limited him in the major life activity of walking. See 29 C.F.R. § 1630.2(i);
see also Talley, 542 F.3d at 1107 (walking considered a major life activity under the ADA).

                                                  6
 No. 09-3164
 Manigan v. SORTA

was placing him on leave in May 2005, solely because his disability imposed a medical restriction,

when, in fact, he was able to do his job. He argues that before he was placed on leave he was doing

his job, and that there was no reason he could not have continued to do his job. In his words:

“Defendant removed a disabled employee from his job - a job he was performing satisfactorily, and

wanted to continue to do - simply and solely because he had a medical restriction. The issue

presented to the Court is whether that action is legal under the ADA.” [Emphasis in original.]

       Thus, the focus of Manigan’s claim is Isham’s May letters placing him on medical leave.

SORTA argues that it placed him on leave because he was unable to perform the essential functions

of his bus-driver position. Manigan argues that SORTA failed to carry its burden of establishing that

driving in excess of eight hours a day was an essential function of Manigan’s bus-driver position. He

cites the many times during the case that SORTA affirmatively asserted and acknowledged that a

person could work as a bus driver without having to drive more than eight hours in a day. Indeed, it

is undisputed that some of the routes did not require that the driver drive more than eight hours a day.

Manigan also relies on testimony that drivers were able to call in sick, and that Broadnax relieved

drivers with “female, marital, and drug and alcohol problems.”

                                                   B

       Regarding the second element of a prima facie case, a “qualified individual” is an individual

with a disability “who, with or without reasonable accommodation, can perform the essential

functions” of his position. 42 U.S.C. § 12111(8). “The term essential functions means the

fundamental job duties of the employment position the individual with a disability holds . . . .” 29

C.F.R. § 1630.2(n)(1). The employer has the burden of proving that a challenged job criterion is an

                                                   7
No. 09-3164
Manigan v. SORTA

essential function. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007). A job

function is essential if its removal would “fundamentally alter” the position. Kiphart v. Saturn Corp.,

251 F.3d 573, 584 (6th Cir. 2001) (quoting 29 C.F.R. § 1630.2(n)). To determine whether a particular

function is “essential” courts consider the following list of non-exhaustive factors:

       (i) The employer’s judgment as to which functions are essential;
       (ii) Written job descriptions prepared before advertising or interviewing applicants for
       the job;
       (iii) The amount of time spent on the job performing the function;
       (iv) The consequences of not requiring the incumbent to perform the function;
       (v) The terms of a collective bargaining agreement;
       (vi) The work experience of past incumbents in the job; and/or
       (vii) The current work experience of incumbents in similar jobs.

Hoskins v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 726 (6th Cir. 2000) (quoting 29 C.F.R. §

1630.2(n)(3)).

                                                  C

       SORTA presented evidence that driving more than eight hours a day when the assigned route

requires is an essential function of the SORTA driver position. SORTA submitted the affidavit of

its Street Operations Manager, John Schmidt, a 30-year employee, who in 2005 was Sector Manager

at SORTA’s Queensgate Division, where Manigan worked. Schmidt’s affidavit, section 17 of the

collective bargaining agreement (CBA), and the Board Rules section on overtime work make clear

that the CBA required that all drivers (whether regulars or subs) work more than eight hours a day

when needed or required to do so. Although Manigan is correct that many routes had stated driving

times (“platform times”) of less than 8 hours, Schmidt’s affidavit attested that drivers had to work

more than 8 hours at times, whether because of the runs they chose, absenteeism, or other factors.


                                                  8
No. 09-3164
Manigan v. SORTA

Moreover, given the CBA’s established system under which bus drivers chose routes in order of

seniority (Manigan had low seniority–having begun employment in 2003), SORTA could not assign

or set aside any specific routes for Manigan under the CBA. Manigan seeks to avoid consideration

of the assigned route as an element of the job description by arguing that the CBA does not require

SORTA to remove an employee who is doing his job. Nevertheless, the CBA does set forth the

manner in which routes are chosen and assigned, and SORTA was not required to deviate from the

prescribed scheme.

           Manigan also relies on the undisputed evidence that both the CBA and SORTA’s actual

practice provided for relief for bus drivers who are unable to complete a shift. Manigan contends that

because the CBA mandated that an adequate supply of extra drivers be maintained at all times,

SORTA had more than enough backup drivers to relieve him whenever necessary. Broadnax did

testify that he often helped Manigan when he requested relief, including by arranging for him to be

relieved. However, Broadnax also testified that there was no way to guarantee that relief would be

available because there may not be enough manpower on any given day, and that there had been times

that Manigan could not be relieved and thus had to drive more than eight hours. Manigan also points

to Broadnax’s testimony that providing relief for Manigan never caused an interruption in service to

SORTA’s customers. However, Broadnax also testified that, had Manigan not worked more than

eight hours on the days that no relief was available, disruptions to the riding public would have

occurred. Further, Schmidt’s affidavit stated that SORTA had never excused drivers on an ongoing

basis from driving more than eight hours and that to do so could cause disruptions in service to the

public and/or grievances being filed. Thus, Manigan’s arguments do not undermine the conclusion

                                                  9
 No. 09-3164
 Manigan v. SORTA

that the ability to drive more than eight hours when the assigned route requires is an essential function

of the bus-driver position.

          In sum, SORTA presented evidence of its judgment of functions essential to bus-driver

positions, the consequences of not requiring the incumbent to perform the function when the assigned

route required, and the terms of the CBA. See 29 C.F.R. § 1630.2(n)(3)(i), (iv), and (v). And,

Manigan did not provide evidence to controvert that working more than eight hours a day when the

assigned route required was an essential function of all SORTA bus driver positions.

                                               D

       The record is clear that, during 2004, Broadnax had “accommodated” Manigan by, when

possible, permitting him either to switch runs with other drivers or be relieved in the field. However,

this was not the backdrop in May 2005, the only time at issue in this case. In 2005, when Manigan’s

doctor again restricted him to driving no more than eight hours a day, Manigan asked Davis for an

accommodation and informed Isham that he would need to take medical leave to have knee surgery.

He also filed a grievance for failure to accommodate his need to drive no more than 8 hours a day.

       This backdrop notwithstanding, Manigan argues that he could perform his job with or without

reasonable accommodation when he was placed on leave in May 2005, that he could have continued

to do so, and that SORTA violated the ADA by requiring him to take a leave of absence. It is unclear

whether Manigan asserts that he was able to drive more than 8 hours when required. Any such

argument would fail, however, in light of his doctor’s restrictions.

       To the extent that Manigan argues that the fact that he had performed his job shows that he

was able to do so, he fails to account for the fact that the requirement of the job with respect to the

                                                   10
No. 09-3164
Manigan v. SORTA

hours of driving changed every time he was assigned a new route. If the route did not require more

than eight hours of driving, no accommodation was necessary. Manigan does not assert that the

routes he was assigned to in May 2005 did not require that he drive more than eight hours. At best

he argues that he could have been assigned such routes or that he could have been relieved when

necessary. But because the ability to drive more than eight hours when the route requires is an

essential function of the position, these can only be characterized as accommodation arguments,

which Manigan disavows, and which the district court correctly rejected.5

       We thus conclude Manigan failed to show that he was otherwise qualified to perform the

essential functions of his position with or without reasonable accommodation, and SORTA was

entitled to summary judgment.

                                                 IV

       Manigan’s claim under Ohio’s civil rights law was properly dismissed as well, because, as the

district court noted “Given the similarity of the language used in the ADA and Chapter 4112, the Ohio

Supreme Court has held that federal regulations and case law are applicable to disability


        5
         Further, an employee claiming that he would have been capable of performing his job had
he been accommodated has the initial burden of having proposed an accommodation and showing
that the accommodation is objectively reasonable. Monette v. Elec. Data Sys. Corp., 90 F.3d 1173,
1183 (6th Cir. 1996) (“[T]he disabled individual bears the initial burden of proposing an
accommodation and showing that that accommodation is objectively reasonable.”) Part of this
burden is that a plaintiff show that he requested the specific accommodation; a plaintiff may not rely
on accommodations that he did not request. See Virts v. Consol. Freightways Corp. of Delaware,
285 F.3d 508, 518 (6th Cir. 2002). Manigan’s requested accommodation in his letter to Davis of
March 21, 2005, was an assignment to a split run, or a combination of extra runs, ideally originating
and ending at the division garage. Because Manigan did not request in 2005 that he be
“accommodated” in the fashion that he had been under Broadnax, his claim fails on this basis as
well. Id.

                                                 11
No. 09-3164
Manigan v. SORTA

discrimination claims brought under Chapter 4112.” R.E. 74, p. 15, citing Columbus Civil Serv.

Comm. v. McGlone, 697 N.E.2d 204, 206-207 (Ohio 1998).

       We AFFIRM the grant of summary judgment to SORTA.




                                             12
