               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0148n.06

                                      Case No. 15-3824                              FILED
                                                                              Mar 16, 2016
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


KENWANNA WHEAT,                                    )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )     ON APPEAL FROM THE UNITED
v.                                                 )     STATES DISTRICT COURT FOR
                                                   )     THE SOUTHERN DISTRICT OF
COLUMBUS BOARD OF EDUCATION,                       )     OHIO
Columbus Public Schools,                           )
                                                   )
       Defendant-Appellee.                         )




       BEFORE: KEITH, COOK, and McKEAGUE, Circuit Judges.

       COOK, Circuit Judge. Plaintiff Kenwanna Wheat appeals from the district court’s entry

of summary judgment in favor of her former employer, Columbus Board of Education (Board),

on her claims for violations of the Americans with Disabilities Act (ADA), the Rehabilitation

Act, and the Ohio Civil Rights Act.       Because the Board terminated Wheat for a non-

discriminatory reason—her medical leave of absence exceeded the two years Board policy

allowed—we AFFIRM.

                                              I.

       Wheat joined the Board as a full-time custodian in 2006. In February 2009, she suffered

an on-the-job injury leaving her shoulder constant pain. Thinking the discomfort would subside,
Case No. 15-3824
Kenwanna Wheat v. Columbus Board of Education


she continued to work for six months until she ultimately sought medical treatment and applied

for a leave of absence. Diagnosing her with shoulder tendinitis, shoulder impingement, and

suprascapular neuropathy, her doctor declared her unable to return to work.          After Wheat

exhausted sick leave and vacation days, the Board approved an unpaid leave of absence

beginning on August 3, 2009.

       Multiple extensions of that leave occurred, as Wheat’s doctor repeatedly affirmed her

inability to work. With each extension, the Board informed Wheat by letter that her leave of

absence was subject to the collective bargaining agreement governing her employment contract.

That agreement directed that “the Board of Education shall grant a leave of absence for a period

not exceeding two (2) successive school years where illness or other disability is the reason for

the request.”

       More than two years after she first took a leave of absence, Wheat learned from her

Bureau of Worker’s Compensation (BWC) caseworker that the Board viewed her as ineligible to

return to work. Wheat then presented the Board with a letter stating that she “will be returning to

work” on March 26, 2012, that she is “disabled,” and “will need accommodations,” and

requesting information about “where to report and what time.” Four days later, the Board’s

Director of Human Resources mailed Wheat a termination letter citing the two-year leave limit.

       Wheat filed a charge of disability discrimination with the Ohio Civil Rights Commission,

which found “no probable cause,” and the Equal Employment Opportunity Commission adopted

that finding. She then filed a complaint in district court for violations of the Americans with

Disabilities Act, 42 U.S.C. §§ 12111–12117, the Rehabilitation Act, 29 U.S.C. §§ 701–718, and

the Ohio Civil Rights Act, Ohio Rev. Code § 4112.02(A), alleging that (1) the Board failed to



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Case No. 15-3824
Kenwanna Wheat v. Columbus Board of Education


accommodate her disability and (2) wrongfully terminated her. The district court granted the

Board’s motion for summary judgment and Wheat now appeals.

                                                II.

       We review the district court’s grant of summary judgment de novo, affirming if the

evidence—viewed in the light most favorable to Wheat—demonstrates that no genuine issue

exists as to any material fact and the Board is entitled to judgment as a matter of law. Vill. of

Oakwood v. State Bank & Tr. Co., 539 F.3d 373, 377 (6th Cir. 2008) (citing Fed. R. Civ. P.

56(c)). Summary judgment is appropriate if a party who bears the burden of proof at trial fails to

establish an essential element of that party’s case. Tolton v. Am. Biodyne, Inc., 48 F.3d 937, 941

(6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). “The mere existence

of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

       We analyze claims made pursuant to the Ohio Civil Rights Act, the Rehabilitation Act,

and the ADA under a single framework.        Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201

(6th Cir. 2010). To win on these claims, Wheat must show that disability discrimination was the

“but-for cause” of the adverse employment action.          Lewis v. Humboldt Acquisition Corp.,

681 F.3d 312, 321 (6th Cir. 2012) (en banc).

       Here, the Board maintains that it terminated Wheat not because of her disability but for

violating the contractual leave-of-absence policy included in her collective bargaining

agreement. Wheat sensibly declines to challenge the legitimacy of this two-year leave policy.

See Melange v. City of Ctr. Line, 482 F. App’x 81, 86 (6th Cir. 2012) (“[B]y providing for the



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Case No. 15-3824
Kenwanna Wheat v. Columbus Board of Education


termination of an employee after one year of disability leave, the [collective bargaining

agreement] is not an outlier; in fact, a one-year leave period appears rather standard.”).

       Instead, she argues that the Board used the contractual term as a pretext to hide its

discriminatory intent, maintaining that the two-year limitation did not actually drive the Board’s

decision. Wheat points to the fact that twice the Board approved extensions beyond the two-year

limit. And not just her—at least 17 other disability-leave employees had their leaves similarly

extended.   The Board explains, however, that it initially granted these extensions because

presenters at a BWC Conference warned its administrators about the unlawfulness of terminating

employees on workers-compensation leave. But once the administrators learned from their legal

department that the law permitted enforcement of the two-year policy, the Board terminated all

18 employees for exceeding the limit. Wheat presents no evidence contesting the veracity of this

explanation or showing that it failed to motivate the Board’s decision. If anything, the fact that

the Board fired other employees in similar fashion bolsters its account.

       To support her pretext argument, Wheat also mentions that the Board provided no notice

before firing her. Each extension letter from the Board, however, explains that the collective

bargaining agreement, which included the two-year leave limit, governed such extensions. In

any event, she cites nothing in the agreement or Board policy necessitating pre-termination

notice. At bottom, Wheat offers no evidence showing that the Board’s explanation masked

discriminatory motives. See Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1049 (6th Cir.

1998) (rejecting similar evidence offered to prove pretext.)          In the absence of evidence

undercutting the Board’s proffered non-discriminatory rationale for Wheat’s termination, the

district court properly granted the Board summary judgment on her wrongful-termination claim.



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Case No. 15-3824
Kenwanna Wheat v. Columbus Board of Education


       Wheat’s failure-to-accommodate claim also fails.       For such claims to succeed, “the

employee is saddled with the burden of proposing an accommodation and proving that it is

reasonable.” Jakubowski, 627 F.3d at 202 (citing Monette v. Elec. Data Sys. Corp., 90 F.3d

1173, 1183 (6th Cir. 1996), overruled on other grounds by Lewis, 681 F.3d at 314–16); see also

Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998). Wheat never

asked the Board to accommodate her physical disabilities within the two-year time frame. When

she demanded to return to work some seven months after the two-year limit expired, the Board

was not obliged to exempt her from its contractual leave policy. Hedrick v. W. Reserve Care

Sys., 355 F.3d 444, 457 (6th Cir. 2004) (citing Burns v. Coca-Cola Enters., 222 F.3d 247, 257

(6th Cir. 2000)) (“[T]he employer [is not] required to waive legitimate, non-discriminatory

employment policies . . . in order to accommodate a disabled employee.”); Walsh v. UPS, 201

F.3d 718, 727 (6th Cir. 2000) (“[I]t would be very unlikely for a request for medical leave

exceeding a year and a half in length to be reasonable.”).

       Similarly, her related claim that the Board failed to engage in the interactive process

mandated by the ADA rings hollow because, again, she never requested a reasonable

accommodation during the two years she was on leave. See Rorrer v. City of Stow, 743 F.3d

1025, 1041 (6th Cir. 2014) (“[F]ailure to engage in the interactive process is only an independent

violation of the ADA if the plaintiff establishes a prima facie showing that [s]he proposed a

reasonable accommodation.”).

       Finally, Wheat seems to suggest that the Board’s return-to-work policies violate the ADA

in two ways: (1) by requiring a return-to-work authorization to be with “no restrictions” and

(2) by excluding employees with permanent disabilities from the transitional work program.

Wheat forfeited these arguments by neglecting to raise them below. Vance v. Wade, 546 F.3d

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Case No. 15-3824
Kenwanna Wheat v. Columbus Board of Education


774, 781 (6th Cir. 2008) (citing Armstrong v. City of Melvindale, 432 F.3d 695, 699–700 (6th

Cir. 2006)). They miss the mark nevertheless.

       First, Wheat never triggered the Board’s policy requiring a doctor’s release with no

restrictions because she never tried to return to work within the two-year leave period.

Regardless, the Board’s leave-granting letters advised that Wheat “may be eligible to return to

work with restrictions—depending on [her] physician’s recommendations.” See Melange, 482 F.

App’x at 86 (upholding a policy using the phrase “without restrictions” because it “certainly

[did] not prevent [plaintiff] from asking for an accommodation”).

       As for her second argument, the Board’s transitional work program offers various work

assignments to employees hampered by temporary restrictions with the goal of returning them to

full-capacity work within 90 days. Employees with permanent disabilities, on the other hand,

may return to work upon requesting an accommodation through the Board’s employee relations

department. Wheat articulates no reason why this dual system flouts the ADA. Plus, she admits

she suffers from a permanent disability, rendering the transitional work program inapposite.

                                             III.

       For these reasons, we AFFIRM the grant of summary judgment in the Board’s favor.




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