           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2      Hedrick v. Western Reserve                 No. 02-3898
        ELECTRONIC CITATION: 2004 FED App. 0012P (6th Cir.)                        Care System, et al.
                    File Name: 04a0012p.06
                                                                                                 _________________
UNITED STATES COURT OF APPEALS                                                                        COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED:         Ira J. Mirkin, GREEN, HAINES, &
                     _________________                                      SGAMBATI, Youngstown, Ohio, for Appellant. Domenic A.
                                                                            Bellisario, LAW OFFICE, Pittsburgh, Pennsylvania, for
 JOANNE HEDRICK,                  X                                         Appellee. ON BRIEF: Ira J. Mirkin, Barry R. Laine,
          Plaintiff-Appellant,     -                                        GREEN, HAINES, & SGAMBATI, Youngstown, Ohio, for
                                   -                                        Appellant.     Domenic A. Bellisario, LAW OFFICE,
                                   -  No. 02-3898                           Pittsburgh, Pennsylvania, for Appellee.
           v.                      -
                                    >                                                            _________________
                                   ,
 WESTERN RESERVE CARE              -
 SYSTEM and FORUM HEALTH , -                                                                         OPINION
                                                                                                 _________________
        Defendants-Appellees. -
                                   -                                            RICHARD MILLS, District Judge.
                                  N
       Appeal from the United States District Court                             A suit alleging both age and disability discrimination.
     for the Northern District of Ohio at Cleveland.
   No. 99-00630—Lesley Brooks Wells, District Judge.                           Joanne Hedrick worked for Western Reserve Care System
                                                                            as a registered nurse for twenty-two years before taking a
                    Argued: October 21, 2003                                medical leave of absence. When she attempted to return to
                                                                            work, Hedrick alleged that Western Reserve Care System and
              Decided and Filed: January 9, 2004                            its holding company, Forum Health, discriminated against her
                                                                            on account of her age, in violation of the Age Discrimination
 Before: MARTIN and SUTTON, Circuit Judges; MILLS,                          in Employment Act (29 U.S.C. § 621 et seq.), and on account
                  District Judge.*                                          of her disability, in violation of the Americans with
                                                                            Disabilities Act (42 U.S.C. § 12101 et seq.) and Ohio Revised
                                                                            Code Chapter 4112.
                                                                              Upon completion of discovery, the district court granted
                                                                            summary judgment in Western Reserve Care System’s favor
                                                                            on all three of Hedrick’s claims against it and denied
                                                                            Hedrick’s motion for partial summary judgment.
    *                                                                           We AFFIRM the judgment of the district court.
     The Hon orable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.

                                   1
No. 02-3898                 Hedrick v. Western Reserve        3    4       Hedrick v. Western Reserve                 No. 02-3898
                                    Care System, et al.                    Care System, et al.

                     I. BACKGROUND                                 return to bedside nursing, and frankly I share her
                                                                   reservations.”
   Joanne Hedrick was born on June 10, 1948. Hedrick
received an associate’s degree in nursing in 1973 and,               On July 16, 1996, Hedrick underwent a functional capacity
thereafter, became employed as a general duty staff nurse by       evaluation in order to determine her ability to return to work
the Youngstown Hospital Association, i.e., the predecessor of      and, if it was determined that she was able to return to work,
Western Reserve Care System (“WRCS”). As a general duty            the limitations, if any, she would have. This evaluation
staff nurse, Hedrick performed typical bedside nursing             indicated that Hedrick would be unable to return to her
functions for WRCS.                                                previous position as a general duty staff nurse at WRCS
                                                                   because of her physical limitations in bending and lifting and
  During the late 1980's, Hedrick was diagnosed as having          due to the pain in her knees. As a result of this evaluation,
osteoarthritis in her left knee. In the early 1990's, her          Dr. Nash wrote to Jon R. Steen, WRCS’s human resources
condition progressed, and Hedrick was diagnosed as having          director, on August 7, 1996, and requested that Hedrick be
and was treated for osteoarthritis in both knees. Since her        considered for other positions.
initial diagnosis, Hedrick has been treated by her family
physician, Dr. L. Kevin Nash, and by her orthopedic surgeon,          In July or August 1996, Hedrick asked to be placed upon
Dr. Raymond Duffett.                                               WRCS’s list of employees who claimed to have permanent
                                                                   work restrictions.1 This list was commonly referred to as the
  On December 1, 1995, Hedrick fell and broke her leg which        “ADA list.” Once an employee was placed upon the ADA
necessitated surgery (performed by Dr. Duffett) and a medical      list, WRCS attempted to find suitable employment for those
leave of absence from work in order to recuperate. On              employees who could no longer perform the duties of their
April 29, 1996, Dr. Duffett released Hedrick to return to work     regular positions. On September 24, 1996, Dr. Nash wrote a
without any restrictions effective June 1, 1996.                   letter to Steen regarding Hedrick’s precise limitations and
                                                                   reported that Hedrick was able to conduct daily activities for
  However, on May 3, 1996, Hedrick visited Dr. Nash and            short intervals, to walk short distances, and to stand, drive,
expressed her reservations about her ability to return to work     and perform desk work for short periods of time. Upon
as a general duty staff nurse because she was concerned that       receipt of Dr. Nash’s letter and pursuant to her request,
she would be unable to perform her duties. Although he did         WRCS placed Hedrick on the ADA list, and subsequently,
not initially share Hedrick’s reservations regarding her ability   WRCS began identifying job vacancies which corresponded
to return to work as a general duty staff nurse, Dr. Nash          with Hedrick’s background, skills, and medical restrictions.
subsequently reversed his opinion and agreed that Hedrick
would be unable to resume her bedside nursing duties. On             In late September 1996, Ann Marie Ondo, WRCS’s
July 1, 1996, Dr. Nash wrote a letter to Sue Yoder, WRCS’s         employment coordinator, informed Hedrick of an opening as
director of nursing, in which he reported that “Ms. Joanne         a referral center scheduler. Hedrick interviewed for the
Hedrick has been making a very slow recovery after her
devastating fracture of the left femur. Joanne has shared with
me that she does not believe that she is going to be able to           1
                                                                         WRCS would only place an employee on the ADA list upon that
                                                                   emp loyee’s request.
No. 02-3898                 Hedrick v. Western Reserve        5    6       Hedrick v. Western Reserve                  No. 02-3898
                                    Care System, et al.                    Care System, et al.

position with Lorraine Nelson and Mary Pat Foley, and              that she would not have to interview for the position because
during the interview, one of the interviewers asked her about      she had recently interviewed for another quality assurance
her physical limitations. Hedrick responded that she would         position. In late March or early April 1997, Ondo advised
be able to fully perform the job’s requirements. However,          Hedrick that she had not been selected for the position.
upon learning of the salary, Hedrick indicated that she was        Thereafter, Hedrick and Ondo continued to communicate
not interested in the position because the salary was too low.     regarding various vacancies at WRCS, but Hedrick was not
Although it is unclear whether the position was formally           interested in any of these vacancies.
offered to Hedrick, it is clear that Hedrick understood that the
job was hers if she wanted it and that she specifically told         In August 1997, Carol Olson contacted Hedrick regarding
Nelson and Foley that she would not take the position.             a temporary assignment as an admissions nurse. Hedrick
                                                                   accepted the position and returned to work with WRCS on
   Later that same month, Ondo informed Hedrick of an open         August 25, 1997, at no loss of earnings or benefits.
quality assurance position. Hedrick interviewed with Nelson
for the position in November 1996, and, again, Nelson asked           After receiving a right to sue letter from the Equal
her about her physical limitations because the position            Employment Opportunity Commission, Hedrick filed a timely
involved some walking and lifting. Hedrick responded that          suit against WRCS and its parent corporation, Forum Health,
she did not believe that her physical limitations would be an      in federal district court on March 17, 1999. Hedrick’s
issue and that, although she may not walk as fast as others,       Complaint contained three Counts: Count I alleged a cause of
she could get from point “A” to “B.” Ultimately, WRCS              action pursuant to the Americans with Disabilities Act
selected an applicant other than Hedrick for the quality           (“ADA”), 42 U.S.C. § 12131 et seq.; Count II alleged a cause
assurance position.                                                of action pursuant to Ohio Revised Code Chapter 4112 which
                                                                   prohibits discrimination on the basis of handicap; and Count
  In January 1997, Ondo informed Hedrick of four case              III alleged a cause of action pursuant to the Age
manager vacancies in the department of medicine. Hedrick           Discrimination in Employment Act (“ADEA”), 29 U.S.C.
interviewed for the positions with Dr. Paul Bunn who also          § 621 et seq.2
asked her about her physical limitations because the positions
entailed a fair amount of walking. Hedrick, again, responded         At the close of the discovery period, Hedrick moved for
that she would have no problems fulfilling the duties of the       partial summary judgment on the issues of whether she was
positions, and Dr. Bunn assured her that she would not be          “disabled” within the meaning of the ADA and whether
hired for her leg work and that the hiring decision would be       WRCS had failed to reasonably accommodate her disability.
based upon experience and knowledge. In February 1997,             WRCS and Forum Health, in turn, moved for summary
Ondo informed Hedrick that the four case manager positions         judgment on each of Hedrick’s claims against them. The
were filled by other more qualified applicants.                    district judge referred the cross-motions for summary
                                                                   judgment to a magistrate judge who filed a report and
  About a week later, Ondo informed Hedrick that another
qualify assurance position was vacant, and Hedrick expressed
an interest in the job. Although Hedrick was initially                 2
                                                                        Hedrick filed an Amended Complaint on January 14, 2000, which
scheduled for an interview in March 1997, Nelson advised her       did not alter her three causes of action.
No. 02-3898                       Hedrick v. Western Reserve               7    8    Hedrick v. Western Reserve                  No. 02-3898
                                          Care System, et al.                        Care System, et al.

recommendation which recommended that summary                                   U.S. 317, 323 (1986). An issue of fact is “genuine” if the
judgment be entered in WRCS and Forum Health’s favor on                         evidence is such that a reasonable jury could return a verdict
all three of Hedrick’s claims and also recommended that                         for the non-moving party. Anderson v. Liberty Lobby, Inc.,
Hedrick’s motion for summary judgment be denied.                                477 U.S. 242, 248 (1986). Determination of whether a fact is
                                                                                “genuine” requires consideration of the applicable evidentiary
  Hedrick filed objections to the magistrate judge’s report                     standard. Id. A fact is “material” only if its resolution will
and recommendation with the district judge, but the district                    affect the outcome of the lawsuit. Id. “Once the moving party
judge denied her objections, adopted the magistrate judge’s                     satisfies its burden, ‘the burden shifts to the nonmoving party
report and recommendation, denied her motion for summary                        to set forth specific facts showing a triable issue.’” Wrench
judgment, and entered summary judgment in WRCS and                              LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir.
Forum Health’s favor on all three Counts of Hedrick’s                           2001)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Amended Complaint. Thereafter, Hedrick filed a timely                           Corp., 475 U.S. 574, 587 (1986)).
notice of appeal.
                                                                                   As for Hedrick’s motion for partial summary judgment, an
                           II. ANALYSIS3                                        order denying summary judgment ordinarily constitutes a
                                                                                non-appealable, interlocutory order. Pacific Union
  A. STANDARD OF REVIEW                                                         Conference of Seventh-Day Adventists v. Marshall, 434 U.S.
                                                                                1305, 1306 (1977). However, because Hedrick’s appeal is
  We review a district court’s order granting summary                           from a final judgment, the denial of her motion for partial
judgment de novo. Equitable Life Assurance Soc’y v. Poe,                        summary judgment is reviewable. Tetro v. Elliott Popham
143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is                        Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d
appropriate where “the pleadings, depositions, answers to                       988, 992 (6th Cir. 1999). “We . . . review de novo a district
interrogatories, and admissions on file, together with the                      court’s order denying summary judgment, if the denial is
affidavits, if any, show that there is no genuine issue as to any               based on purely legal grounds. If the denial is based on the
material fact and that the moving party is entitled to a                        district court’s finding of a genuine issue of material fact,
judgment as a matter of law.” Fed. R. Civ. P. 56 (c). The                       however, we review for abuse of discretion a district court’s
moving party has the initial burden of showing the absence of                   order denying summary judgment.” Black v. Roadway
a genuine issue of material fact as to an essential element of                  Express, Inc., 297 F.3d 445, 448 (6th Cir. 2002)(internal
the non-moving party’s case. Celotex Corp. v. Catrett, 477                      citations omitted).

    3
     Hedrick did not file an objection with the district court to the
magistrate judge’s recommendation tha t Forum H ealth was entitled to
summary judgment or to the magistrate judg e’s finding that she had
waived her disability claim based upon obesity by failing to assert it at the
summary judgment stage. Likewise, Hedrick has not challenged on
appeal the district court’s dismissal o f Forum H ealth or her disability
claim based upon obesity, and th us, those issues are waived and are not
before the C ourt.
No. 02-3898                      Hedrick v. Western Reserve             9    10   Hedrick v. Western Reserve                  No. 02-3898
                                         Care System, et al.                      Care System, et al.

  B. ADA CLAIM4                                                                position despite his or her disability: (a) without
                                                                               accommodation from the employer; (b) with an alleged
   The ADA provides, in relevant part, that “[n]o covered                      “essential” job requirement eliminated; or (c) with a
entity shall discriminate against a qualified individual with a                proposed reasonable accommodation. (3) The employer
disability because of the disability of such individual in                     will bear the burden of proving that a challenged job
regard to job application procedures, the hiring, advancement,                 criterion is essential, and therefore a business necessity,
or discharge of employees, employee compensation, job                          or that a proposed accommodation will impose an undue
training, and other terms, conditions, and privileges of                       hardship upon the employer.
employment.” 42 U.S.C. § 12112(a). In order to establish a
prima facie case of disability discrimination under the ADA,                 Monette, 90 F.3d at 1186. When a plaintiff seeks to establish
a plaintiff must establish that: “1) he is an individual with a              his case indirectly, however, the McDonnell Douglas burden-
disability; 5 2) he is ‘otherwise qualified’ to perform the job              shifting approach applies so that the
requirements, with or without reasonable accommodation;
and 3) he was [not hired] solely by reason of his handicap.”                   plaintiff may establish a prima facie case of
Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1178                      discrimination by showing that: (1) he or she is disabled;
(6th Cir. 1996) (footnote added)(citations omitted). A                         (2) otherwise qualified for the position, with or without
plaintiff may prove that he was discriminated against based                    reasonable accommodation; (3) suffered an adverse
upon his disability either through direct or indirect evidence.                employment decision; (4) the employer knew or had
Id.                                                                            reason to know of the plaintiff’s disability; and (5) the
                                                                               position remained open while the employer sought other
  We have previously explained that in cases where the                         applicants or the disabled individual was replaced. The
plaintiff presents direct evidence of disability discrimination:               defendant must then offer a legitimate explanation for its
                                                                               action. If the defendant satisfies this burden of
  (1) The plaintiff bears the burden of establishing that he                   production, the plaintiff must introduce evidence
  or she is disabled. (2) The plaintiff bears the burden of                    showing that the proffered explanation is pretextual.
  establishing that he or she is “otherwise qualified” for the                 Under this scheme, the plaintiff retains the ultimate
                                                                               burden of persuasion at all times.

    4                                                                        Id. at 1186-87; Walsh v. United Parcel Serv., 201 F.3d 718,
       Because the essential elements of an ADA claim and a claim under      724-25 (6th Cir. 2000).
the Ohio handicap discrimination statute are identical, our analysis of
Hedrick’s ADA claim also reso lves her state law claim . Plant v. Morton
Int’l, Inc., 212 F.3d 929, 938-39 (6th Cir. 2000); Hoffman v. F idelity        As this Court recognized in Kline v. Tennessee Valley
Brokerage Servs., Inc., 959 F. Supp. 452 , 457 n. 1 (S.D. Ohio 19 97).       Auth., 128 F.3d 336 (6th Cir. 1997), “[t]he direct evidence
                                                                             and circumstantial evidence paths are mutually exclusive; a
    5
       Under the ADA , the term “disability” is defined as “(A) a physical   plaintiff need only prove one or the other, not both. If a
or mental impairment that substantially limits one or more of the major      plaintiff can produce direct evidence of discrimination then
life activities of such individual; (B) a record of such an impairment; or   the McDonnell Douglas-Burdine paradigm is of no
(C) being regarded as having such an impairment.” 42 U.S.C. § 1210 2(2);     consequence. Similarly, if a plaintiff attempts to prove its
Toy ota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 193 (200 2).
No. 02-3898                  Hedrick v. Western Reserve        11    12     Hedrick v. Western Reserve                  No. 02-3898
                                     Care System, et al.                    Care System, et al.

case using the McDonnell Douglas-Burdine paradigm, then                 Second, Hedrick contends that, contrary to the district
the party is not required to introduce direct evidence of            court’s conclusion, Dr. Nash’s testimony regarding Nelson’s
discrimination.” Id. at 348-49.                                      statement to him created a genuine issue of material fact
                                                                     sufficient to deny WRCS’s motion for summary judgment.
  As the district court correctly noted, the crux of Hedrick’s       Hedrick asserts that the district court erred in holding that the
Amended Complaint against WRCS is that WRCS unlawfully               direct evidence standard requires a defendant’s admission in
discriminated against her by failing to award her one of the         order to constitute direct evidence of disability discrimination.
four case manager positions or one of the two quality                On the contrary, Hedrick claims that this Court’s opinion in
assurance positions for which she applied. Hedrick argues            Ross v. Campbell Soup Co., 237 F.3d 701 (6th Cir. 2001),
that she established her prima facie case of disability              establishes that isolated comments may constitute direct
discrimination under the ADA via both the direct and the             evidence of disability discrimination sufficient to defeat a
indirect method.                                                     defendant’s summary judgment motion. Accordingly,
                                                                     Hedrick asks us to reverse the district court’s grant of
  1.   Direct Evidence                                               summary judgment against her.
  a.   Arguments                                                       b.    Conclusions
  As for her direct evidence of disability discrimination,             We find that the district court did not err in finding
Hedrick relies upon the testimony of Dr. Nash who testified          Hedrick’s direct evidence of disability discrimination
that Nelson “expressed concern to me that she felt that              insufficient to withstand WRCS’s summary judgment motion.
[Hedrick’s] medical condition would prohibit her from being          While it is true (as cited by Hedrick) that some of our sister
able to perform this job as case manager.” Hedrick contends          circuits have held that an ADA plaintiff need not demonstrate
that the district court erred in rejecting this direct evidence of   that disability was the sole reason for the adverse employment
disability discrimination–as grounds for denying WRCS’s              action but only that it played a motivating role in the decision,
motion for summary judgment–for two reasons.                         e.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 337
                                                                     (2d Cir. 2000), Monette and Walsh remain good law in this
   First, Hedrick asserts that the district court erred in           circuit, and we are bound by this authority. See McLeod v.
requiring her to establish that she was denied one of the            Parsons Corp., 2003 WL 22097841, * 11 (6th Cir. Sept. 5,
vacant job positions for which she applied solely because of         2003)(“We decline McLeod’s request that this panel permit
unlawful disability discrimination.           Although she           plaintiffs to recover under the ADA in mixed motive cases.
acknowledges that Monette and its progeny hold that an               Adopting the approach followed by several other circuits
ADA plaintiff must establish that the adverse employment             would require the panel to make a substantial departure from
action occurred “solely by reason of his handicap,” Monette,         this Court’s holdings in Walsh and Monette. Under Salmi v.
90 F.3d at 1178, Hedrick claims that this holding is no longer       Secretary of Health and Human Services, 774 F.2d 685, 689
good law. Rather, Hedrick argues that all she needed to show         (6th Cir. 1985), one panel of this Court cannot reverse the
in order to establish her prima facie case under the ADA was         holding of another panel unless there is a contrary Supreme
that discriminatory animus played a part in WRCS’s hiring            Court decision or en banc decision by this Court. Id.”).
decision, not that it was the sole reason.                           Accordingly, the district court did not err in requiring Hedrick
No. 02-3898                 Hedrick v. Western Reserve      13    14       Hedrick v. Western Reserve                          No. 02-3898
                                    Care System, et al.                    Care System, et al.

to show that her disability was the sole reason for WRCS’s        regarded Ross through the lens of his medical condition.”).
decision not to hire her for one of the four case manager         In the instant case, Hedrick tendered Nelson’s statement to
positions or one of the two quality assurance positions for       Dr. Nash in an attempt to tender direct evidence of WRCS’s
which she applied.                                                discriminatory animus sufficient to establish her prima facie
                                                                  case under the ADA, not merely to establish that WRCS
   Furthermore, we agree that Ross is distinguishable from the    regarded her as being disabled.6
instant case. In Ross, we held that the district court erred in
dismissing, as isolated and insufficient to constitute direct       Finally, the Ross memorandum is distinguishable in that the
evidence of discriminatory animus, a memorandum which             memorandum’s tone was clearly discriminatory, see id. (“Not
referred to the plaintiff as a “back case.” Ross, 237 F.3d at     only does the note identify Ross as a ‘problem person,’ a
706-07. Although it is true that the Ross court concluded         comment which cannot be taken in a positive light, but it also
“that the district court too easily dismissed the ‘back case’     identifies him as a ‘back case.’ The ADA was enacted, in
memo as direct evidence of discrimination by the employer,”       part, to eliminate the sort of stereotyping that allowed
id. at 707, when viewed in the entire context of the case and     employers to see their employees primarily as their
of the court’s opinion, it is clear that the back memorandum      disabilities and not as persons differently abled from
was but one event in a series of comments and reports which,      themselves.”), while Nelson’s comment to Dr. Nash was
when taken cumulatively, was sufficient to create a genuine       clearly an expression of concern for Hedrick’s ability to
issue of material fact precluding summary judgment. Here,         perform the jobs’ requirements which included a fair amount
Hedrick has tendered no series of comments or reports which       of walking. Accordingly, we agree with the district court that
would indicate WRCS’s discriminatory animus, and thus,            Hedrick failed to tender any direct evidence in support of her
Nelson’s comment to Dr. Nash may properly be characterized        ADA claim against WRCS.
as isolated and insufficient to create a genuine issue of
material fact regarding WRCS’s discriminatory intent.               2.      Indirect Evidence

   In addition, the plaintiff in Ross tendered the memorandum       a.      Arguments
in order to establish that his employer regarded him as being
disabled, and the Ross court held that the memorandum, when         As for her indirect evidence of disability discrimination,
viewed in combination with other evidence, was sufficient to      Hedrick argues that only the first two elements of her
create a genuine issue of material fact with regard to that       prima facie case are in dispute because it is undisputed that
element. See id. at 706 (“We conclude that Ross has presented     she satisfied elements three, four, and five. She suffered an
sufficient evidence to create a genuine issue of material fact    adverse employment decision (i.e., she was not hired for one
concerning his claim that the company regarded him has [sic]      of the four vacant case manager positions and/or for one of
a person with a disability within the meaning of the Act.         the two quality assurance positions); WRCS knew of her
Perhaps the piece of evidence most indicative of this fact is     disability; and the positions remained open while WRCS
the ‘back case’ memo . . . .”); see also id. at 707 (“That the
note’s author would think to identify Ross with the scrawled
post-script ‘back case’ demonstrates that there is at least a          6
                                                                        In any event, as will be discussed infra, Hedrick has failed to show
genuine issue of material fact that Campbell Soup Co.             that she is a “qualified individual with a disability.” 42 U.S.C. § 12111 (8).
No. 02-3898                 Hedrick v. Western Reserve        15    16     Hedrick v. Western Reserve                No. 02-3898
                                    Care System, et al.                    Care System, et al.

sought other applicants, and non-disabled applicants were           her on its ADA list, and that WRCS asked her about her
chosen for the positions rather than her. Hedrick asserts that      physical limitations during several of her interviews.
the district court erred in concluding that she did not show the    Accordingly, Hedrick argues that a genuine issue of material
existence of a genuine issue of material fact as to the first two   fact existed regarding whether she was “disabled” within the
elements of her prima facie case, and therefore, she asks us to     meaning of the ADA and that the district court committed
reverse the district court’s summary judgment order.                reversible error in finding her not to be disabled.
  Regarding the first element of her prima facie case, Hedrick        Regarding the second element of her prima facie case,
argues that her osteoarthritis in her knees constitutes a           Hedrick contends that WRCS did not provide her with a
“disability,” as that term is defined in the ADA, (1) because       reasonable accommodation as required under the ADA.
her condition is a physical impairment which substantially          Specifically, Hedrick claims that the district court erred in
limits her major life activities of walking and working;            concluding that the referral center scheduler position was a
(2) because she has a record of having such an impairment;          reasonable accommodation which satisfied WRCS’s
and (3) because WRCS regarded her as having a disabling             obligations under the ADA and, as a result, erred in ruling
impairment. 42 U.S.C. § 12102(2); Toyota Motor Mfg., 534            that she was not “a qualified individual with a disability.”
U.S. at 193.
                                                                       In making this finding, Hedrick asserts that the district
  First, Dr. Nash testified that, in his medical opinion,           court resolved disputed issues of fact which were not properly
Hedrick’s osteoarthritis in her knees rendered her disabled         determinable on summary judgment: the district court found
within the meaning of the ADA and that her condition is             that WRCS offered Hedrick the referral center scheduler
severe and permanent. Dr. Nash also testified that Hedrick          position, that she refused it, and that the referral center
could not perform a broad range of nursing jobs due to her          scheduler position was a reasonable accommodation.
limited ability to work and walk– both of which are                 Because genuine issues of material fact existed regarding the
considered to be major life activities under the ADA.               first two elements of her prima facie case, Hedrick argues that
                                                                    the district court committed reversible error in entering
  Second, Hedrick contends that Dr. Nash’s correspondence           summary judgment against her on her ADA claim.
with WRCS, her functional capacity evaluation, and the fact
that she was on WRCS’s ADA list establish that she had a              b.    Conclusions
record of having a disabling impairment and, taken
individually or collectively, constitute sufficient evidence to       We find that the district court did not err in entering
create a genuine issue of material fact as to whether she is        summary judgment in WRCS’s favor because Hedrick did not
disabled.                                                           satisfy her prima facie case of disability discrimination under
                                                                    the McDonnell Douglas burden-shifting method. In reaching
   Third, Hedrick claims that WRCS regarded her as having           this conclusion, we need not resolve the thornier issue of
a disabling impairment and that the district court erred in         whether Hedrick was “disabled” under the ADA because it is
holding otherwise. In support of her argument, Hedrick notes        clear that, even assuming that she was disabled, she was not
that WRCS agreed that she could not resume her general duty         a qualified individual with a disability. Accordingly, we
staff nurse position due to her condition, that WRCS placed         affirm the district court.
No. 02-3898                 Hedrick v. Western Reserve      17    18    Hedrick v. Western Reserve                    No. 02-3898
                                    Care System, et al.                 Care System, et al.

  “A ‘qualified individual with a disability’ is defined as ‘an     Although a “reasonable accommodation” may include
individual with a disability who, with or without reasonable      reassignment to a vacant position, 42 U.S.C. § 12111(9)(B);
accommodation, can perform the essential functions of the         29 C.F.R. § 1630.2(o)(2)(ii), an employer need not reassign
employment position that such individual holds or desires.’”      a disabled employee to a position for which he is not
Black, 297 F.3d at 448 (quoting 42 U.S.C. § 12111(8)); see 29     qualified, nor is the employer required to waive legitimate,
C.F.R. § 1630.2(m)(“Qualified individual with a disability        non-discriminatory employment policies or displace other
means an individual with a disability who satisfies the           employees’ rights in order to accommodate a disabled
requisite skill, experience, education and other job-related      employee. Burns, 222 F.3d at 257. On the contrary,
requirements of the employment position such individual
holds or desires, and who, with or without reasonable               [a]ccording to the regulations, an employer need only
accommodation, can perform the essential functions of such          reassign a disabled employee to a vacant position.
position.”). As we have previously explained:                       Employers are not required to create new jobs, displace
                                                                    existing employees from their positions, or violate other
  To recover under the ADA, a plaintiff must do more than           employees’ rights under a collective bargaining
  show that he is “disabled” within the meaning of the              agreement or other non-discriminatory policy in order to
  statute. He must also establish that he is a “qualified           accommodate a disabled individual.
  individual with a disability” by showing: (1) that he
  “satisfies the prerequisites for the position [he holds or      Id. (internal citations omitted).
  desires], such as possessing the appropriate educational
  background, employment experience, [and] skills . . .”;            Furthermore, in order to satisfy its duty under the ADA, an
  and (2) that he “can perform the essential functions of the     employer is only required to transfer an employee to a
  position held or desired, with or without reasonable            position comparable to the employee’s prior position. Hoskins
  accommodation.”                                                 v. Oakland County Sheriff’s Dep’t, 227 F.3d 719, 728 n. 3
                                                                  (6th Cir. 2000). “The regulations instruct that employers
Burns v. Coca-Cola Enter., Inc., 222 F.3d 247, 256 (6th Cir.      ‘should reassign the individual to an equivalent position, in
2000)(quoting Dalton v. Subaru-Isuzu Auto., Inc., 141 F.3d        terms of pay, status, etc., if the individual is qualified, and if
667, 676 (7th Cir. 1998)).                                        the position is vacant within a reasonable amount of time,’
                                                                  and should only reassign an individual to a lower graded
   “A disabled employee who claims that he or she is              position if the individual cannot be accommodated in an
otherwise qualified with a reasonable accommodation ‘bears        equivalent position. 29 C.F.R. pt. 1630, App. § 1630.2(o).”
the initial burden of proposing an accommodation and              Id. The ADA does not require an employer to offer an
showing that that accommodation is objectively reasonable.’”      employee a promotion as a reasonable accommodation,
Cassidy v. Detroit Edison Co., 138 F.3d 629, 633-34 (6th Cir.     Cassidy, 138 F.3d at 634, and “an employee cannot make his
1998)(quoting Monette, 90 F.3d at 1183). An employer, then,       employer provide a specific accommodation if another
has the burden of persuasion to show that an accommodation        reasonable accommodation is instead provided.” Hankins v.
would impose an undue hardship. Id. at 634; Monette, 90 F.3d      The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996)(citing
at 1184.                                                          Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69
                                                                  (1986)). In fact, where a comparable position is not vacant,
No. 02-3898                 Hedrick v. Western Reserve       19    20    Hedrick v. Western Reserve                   No. 02-3898
                                    Care System, et al.                  Care System, et al.

an employer’s obligation to reassign an employee may                 A. I stated that I expected the cut in salary when I came
include an assignment to a position with a lower grade of pay           back; but I did not expect that drastic of a cut when I
if the employee meets the job’s qualifications. Cassidy, 138            came back.
F.3d at 634.
                                                                                                ***
   Finally, the regulations indicate that, although an employee
is not required to accept an offered accommodation, if an            A. It became a consensus at that point in time that I was
individual rejects a reasonable accommodation, the individual           overqualified. And I told them I would not take the
will no longer be considered a qualified individual with a              position.
disability. Hoskins, 227 F.3d at 728 n. 3; Hankins, 84 F.3d at
801. Specifically, 29 C.F.R. § 1630.9(d) provides:                   Q. You said you would not take the position had they
                                                                        offered it to you?
  A qualified individual with a disability is not required to
  accept an accommodation, aid, service, opportunity or              A. I assumed if they would have offered to me that with
  benefit which such qualified individual chooses not to                my – I just made the statement that I wasn’t interested
  accept. However, if such individual rejects a reasonable              in that position at that point in time because I did not
  accommodation, aid, service, opportunity or benefit that              think it was for me.
  is necessary to enable the individual to perform the
  essential functions of the position held or desired, and           Q. And is the reason that you didn’t think it was for you
  cannot, as a result of that rejection, perform the essential          because of the salary?
  functions of the position, the individual will not be
  considered a qualified individual with a disability.               A. Yes.

Id.                                                                Thus, although Hedrick may have personally believed that she
                                                                   was overqualified for the position and that the salary was too
  In the instant case, we agree with the district court that the   low, WRCS satisfied its obligation under the ADA by
referral center scheduler position was a reasonable                offering a reasonable accommodation when it made the
accommodation and that Hedrick cannot be considered a              referral center scheduler position available to her.
qualified individual with a disability based upon her rejection
of that position. As noted supra, although it is unclear             In addition, we agree with the district court that the referral
whether WRCS formally offered the position to Hedrick, it is       center scheduler position was comparable to her previous
clear, based upon her own deposition testimony, that Hedrick       position and that the four case manager positions and the two
understood that the job was hers if she wanted it and that she     quality assurance positions were neither vacant nor
preemptively rejected the position by informing Nelson and         comparable. Although Hedrick asserts that she was
Foley that she would not take the position because of its low      overqualified for the referral center scheduler position
salary:                                                            because she was a registered nurse, WRCS eventually filled
                                                                   the position with a registered nurse who, like Hedrick, was
                                                                   coming off of a disability leave.
No. 02-3898                   Hedrick v. Western Reserve         21    22   Hedrick v. Western Reserve                   No. 02-3898
                                      Care System, et al.                   Care System, et al.

   Likewise, although it is true that one of the quality               discrimination against qualified individuals with disabilities,
assurance positions became available just nine days after the          no more and no less.”); Terrell v. USAir, Inc., 132 F.3d 621,
referral center scheduler position became available, it is also        627 (11th Cir. 1998)(“We cannot accept that Congress, in
true that the quality assurance positions were not comparable          enacting the ADA, intended to grant preferential treatment for
to her previous position because they were salaried, non-              disabled workers.”).
bargaining positions which would have constituted a
promotion. As such, WRCS had no duty to offer the quality                Accordingly, we find that the district court correctly entered
assurance positions to Hedrick. Cassidy, 138 F.3d at 634. As           summary judgment in WRCS’s favor on Hedrick’s ADA
for the case manager positions, although the jobs would not            claim because she failed to tender direct evidence of disability
have constituted a promotion, the record reflects that they did        discrimination sufficient to withstand WRCS’s summary
not become available until well after the referral center              judgment motion, because she cannot be considered a
scheduler position became available, and Hedrick presented             qualified individual with a disability based upon her rejection
no evidence to establish that WRCS knew that these positions           of the proffered referral center scheduler position, and
would soon become available when it offered her the referral           because WRCS satisfied its obligations under the ADA of
center scheduler position.7                                            offering a reasonable accommodation to Hedrick by making
                                                                       the referral center scheduler position available to her.
   Finally, contrary to Hedrick’s argument, her disability did
not provide her with a preference in WRCS’s hiring practices.            C. ADEA CLAIM
Although WRCS may have had an obligation to reassign her
to a vacant position for which she was qualified, the ADA                The ADEA provides in relevant part: “It shall be unlawful
does not mandate that she be afforded preferential treatment.          for an employer– (1) to fail or refuse to hire or to discharge
E.g., Burns, 222 F.3d at 258 (quoting Dalton, 141 F.3d at              any individual or otherwise discriminate against any
679)(“Allowing Burns to recover despite his failure to abide           individual with respect to his compensation, terms,
by KCC’s non-discriminatory policy requiring him to apply              conditions, or privileges of employment, because of such
for a transfer to a new position within his restrictions would         individual’s age.” 29 U.S.C. § 623(a)(1). Like the ADA, a
‘convert a nondiscrimination statute into a mandatory                  plaintiff attempting to establish a claim under the ADEA may
preference statute, a result which would be inconsistent with          do so by producing either direct evidence, or he may rely
the nondiscriminatory aims of the ADA.’”); Daugherty v. City           upon the McDonnell Douglas burden-shifting method. Kline,
of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)(“we do not read           128 F.3d at 348-49; Mitchell v. Toledo Hosp., 964 F.2d 577,
the ADA as requiring affirmative action in favor of                    582 n. 4 (6th Cir. 1992).
individuals with disabilities, in the sense of requiring that
disabled persons be given priority in hiring or reassignment             Moreover, like her ADA claim, the gist of Hedrick’s ADEA
over those who are not disabled. It prohibits employment               claim is that WRCS discriminated against her by failing to
                                                                       award her one of the case manager positions and/or one of the

    7
     W RCS offered Hedrick the referral center scheduler position in
September 1996, and the case manager positions becam e available in
December 1996.
No. 02-3898                     Hedrick v. Western Reserve            23     24    Hedrick v. Western Reserve                    No. 02-3898
                                        Care System, et al.                        Care System, et al.

quality assurance positions for which she applied.8 However,                      To make a submissible case on the credibility of his
unlike her ADA claim, Hedrick acknowledges that she cannot                        employer’s explanation, the plaintiff is required to
produce any direct evidence in support of her ADEA claim.                         show by a preponderance of the evidence either
Accordingly, Hedrick has attempted to establish her ADEA                          (1) that the proffered reasons had no basis in fact,
claim pursuant to the indirect method.                                            (2) that the proffered reasons did not actually motivate
                                                                                  his discharge, or (3) that they were insufficient to
  In order to establish a prima facie case of age                                 motivate discharge. The first type of showing is easily
discrimination pursuant to the McDonnell Douglas burden-                          recognizable and consists of evidence that the
shifting method,                                                                  proffered bases for the plaintiff’s discharge never
                                                                                  happened, i.e., that they are factually false. The third
  a plaintiff must establish that: (1) he was at least 40 years                   showing is also easily recognizable and, ordinarily,
  old at the time of the alleged discrimination; (2) he was                       consists of evidence that other employees, particularly
  subjected to an adverse employment action; (3) he was                           employees not in the protected class, were not fired
  otherwise qualified for the position; and (4) after he was                      even though they engaged in substantially identical
  rejected, a substantially younger applicant was selected.                       conduct to that which the employer contends
  See Barnett v. Dep’t of Veterans Affairs, 153 F.3d 338,                         motivated its discharge of the plaintiff. These two
  341 (6th Cir. 1998). If the plaintiff successfully                              types of rebuttals are direct attacks on the credibility of
  establishes a prima facie case, the burden of production                        the employer’s proffered motivation for firing plaintiff
  shifts to the defendant to articulate a non-discriminatory                      and, if shown, provide an evidentiary basis for what
  reason for its action. See id. If the defendant comes up                        the Supreme Court has termed “a suspicion of
  with such a reason, the plaintiff must then demonstrate                         mendacity.”
  by a preponderance of the evidence that the defendant’s
  proffered reason was a pretext for age discrimination. See                      The second showing, however, is of an entirely
  id.                                                                             different ilk. There, the plaintiff admits the factual
                                                                                  basis underlying the employer’s proffered explanation
Burzynski v. Cohen, 264 F.3d 611, 622 (6th Cir. 2001).                            and further admits that such conduct could motivate
Moreover,                                                                         dismissal. The plaintiff’s attack on the credibility of
                                                                                  the proffered explanation is, instead, an indirect one.
  [i]n Manzer, a case brought under the ADEA, this Court                          In such cases, the plaintiff attempts to indict the
  explained what evidence a plaintiff must adduce in order                        credibility of his employer’s explanation by showing
  to show that an employer’s alleged legitimate reason for                        circumstances which tend to prove that an illegal
  its adverse action against the plaintiff was a mere pretext:                    motivation was more likely than that offered by the
                                                                                  defendant. In other words, the plaintiff argues that the
                                                                                  sheer weight of the circumstantial evidence of
                                                                                  discrimination makes it “more likely than not” that the
    8                                                                             employer’s explanation is a pretext, or a coverup.
      WRCS filled one of the case manager positions with an individual
older than Hedrick, and so, she does not co mpla in of the d enial of this
position with regard to her ADEA claim.
No. 02-3898                     Hedrick v. Western Reserve           25    26     Hedrick v. Western Reserve                     No. 02-3898
                                        Care System, et al.                       Care System, et al.

       Accordingly, we hold that, in order to make this type               court’s summary judgment order with regard to her ADEA
       of rebuttal showing, the plaintiff may not rely simply              claim because genuine issues of material fact exist as to
       upon his prima facie evidence but must, instead,                    whether WRCS’s proffered reason for refusing to hire her for
       introduce additional evidence of age discrimination.                one of the vacant case manager and/or quality assurance
                                                                           positions was pretextual.
  Manzer, 29 F.3d at 1084.
                                                                             2.    Conclusions
Pennington v. Western Atlas, Inc., 202 F.3d 902, 909-10 (6th
Cir. 2000).                                                                  We find that the district court did not err in holding that
                                                                           Hedrick failed to demonstrate, by a preponderance of the
  In the case sub judice, the district court found (and, in fact,          evidence, that WRCS’s proffered reason for not hiring her for
WRCS conceded) that Hedrick had established a prima facie                  one of the vacant case manager and/or quality assurance
case of age discrimination. WRCS, then, offered a legitimate,              positions was a pretext for age discrimination and, therefore,
non-discriminatory reason for not hiring Hedrick for one of                did not err in entering summary judgment against Hedrick on
the vacant case manager positions and/or quality assurance                 her ADEA claim.
positions, i.e., WRCS asserted that it chose better qualified
candidates than Hedrick to fill the vacant positions. Finally,               Contrary to her assertion otherwise, we do not believe that
the district court found that Hedrick had failed to show that              the district court improperly applied the Supreme Court’s
WRCS’s proffered reason for not hiring Hedrick was                         holding in Reeves by requiring her to produce additional
pretextual.                                                                evidence of discrimination beyond the evidence necessary to
                                                                           cast doubt on the genuineness of WRCS’s asserted reason for
  1.     Arguments                                                         not hiring her. A close reading of the district court’s
                                                                           summary judgment order reveals that the district court did not
  Hedrick argues that the district court’s finding regarding               require Hedrick to satisfy a “pretext plus” standard; rather, the
pretext was erroneous. Specifically, Hedrick contends that                 district court specifically stated that “[e]ven if WRCS’s
the district court improperly applied the United States                    proffered reason were disbelieved, the evidence Hedrick
Supreme Court’s holding in Reeves v. Sanderson Plumbing                    presents does not support an inference that age discrimination
Prods., Inc., 530 U.S. 133 (2000), and that the district court             was the motivating factor in WRCS’s hiring decision.” Thus,
disregarded the evidence of pretext which she tendered,                    the district court concluded that, even though Hedrick had
choosing instead to blindly accept WRCS’s subjective                       established a prima facie case under the ADEA, and even if
determination that the successful applicants were better                   the district court assumed that Hedrick provided sufficient
qualified than she was without conducting any analysis of that             evidence to show that WRCS’s asserted justification was
claim.9 Accordingly, Hedrick asks us to reverse the district               false, Hedrick’s evidence was insufficient to avoid summary
                                                                           judgment, and the Supreme Court in Reeves anticipated just
    9
      Hedrick’s evidence of pretext consisted of the following: (1) the
interviewers’ memories had faded, and no notes existed which revealed
how they came to their decisions; (2) it is unclear who made the           most qualified candidate; and (4) WRCS hired individuals younger than
employment decisions; (3) her own testimony established that she was the   she.
No. 02-3898                 Hedrick v. Western Reserve        27    28    Hedrick v. Western Reserve                   No. 02-3898
                                    Care System, et al.                   Care System, et al.

such a scenario: “Certainly there will be instances where,          (4th Cir. 1981)(en banc)). As we have oft times repeated, “it
although the plaintiff has established a prima facie case and       is inappropriate for the judiciary to substitute its judgment for
set forth sufficient evidence to reject the defendant’s             that of management.” Smith v. Leggett Wire Co., 220 F.3d
explanation, no rational factfinder could conclude that the         752, 763 (6th Cir. 2000); see Krenik v. County of Le Sueur,
action was discriminatory.” Id. at 148.                             47 F.3d 953, 960 (8th Cir. 1995)(holding that federal courts
                                                                    do not sit as a “super-personnel department”); see also Elrod
  As for Hedrick’s argument that the district court improperly      v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
disregarded her evidence of pretext, it is true that the district   1991)(same). “Rather, our inquiry is limited to whether the
court could have done a more thorough job of discussing             employer gave an honest explanation of its behavior.” Harvey
Hedrick’s proffered evidence, especially given the fact that        v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994)
WRCS’s justification for its employment decision was                (quoting Elrod, 939 F.2d at 1470); see Simms v. Oklahoma ex
subjective, and subjective reasons provide “ready mechanisms        rel. Dep’t of Mental Health and Substance Abuse Servs., 165
for discrimination.” Grano v. Department of Dev. of City of         F.3d 1321, 1330 (10th Cir. 1999)(“Our role is to prevent
Columbus, 699 F.2d 836, 837 (6th Cir. 1983). However, we            unlawful hiring practices, not to act as a ‘super personnel
ultimately agree with the district court that Hedrick’s             department’ that second guesses employers’ business
evidence of pretext was insufficient to withstand summary           judgments.”).
judgment.
                                                                      Accordingly, we find that the district court correctly entered
  “The isolated fact that a younger person eventually replaces      summary judgment in WRCS’s favor on Hedrick’s ADEA
an older employee is not enough to permit a rebuttal inference      claim because she failed to demonstrate, by a preponderance
that the replacement was motivated by age discrimination.”          of the evidence, that WRCS’s proffered reason for not hiring
Chappell v. GTE Prods. Corp., 803 F.2d 261, 267 (6th Cir.           her for one of the vacant case manager and/or quality
1986)(citing LaMontagne v. American Convenience Prods.,             assurance positions was a pretext for age discrimination.
Inc., 750 F.2d 1405, 1413 (7th Cir. 19084). Moreover,
Hedrick’s subjective view of her qualifications in relation to                           III. CONCLUSION
those of the other applicants, without more, cannot sustain a
claim of discrimination. Johnson v. United States Dep’t of            Accordingly, for the reasons set forth above, we AFFIRM
Health and Human Servs., 30 F.3d 45, 47-48 (6th Cir. 1994);         the district court’s grant of summary judgment for WRCS
see Mitchell, 964 F.2d at 584 (holding that the plaintiff’s         in toto. Because we affirm the district court’s grant of
subjective skepticism regarding the truth of an employer’s          WRCS’s motion for summary judgment, we also AFFIRM
representation does not raise a triable issue as to pretext).       the district court’s denial of Hedrick’s motion for partial
                                                                    summary judgment.
  Finally, “[a]lthough the reason[] proffered by [WRCS]
involve[d] subjective factors, [it was] clearly sufficient to
dispel the inference of discrimination and to afford [Hedrick]
a ‘full and fair opportunity’ to show pretext.” Daniels v.
Board of Educ. of Ravenna City Sch. Dist., 805 F.2d 203, 209
(6th Cir. 1986)(citing Page v. Bolger, 645 F.2d 227, 228, 230
