SELECTED 6th CIRCUIT COURT OF APPEALS ADA/504 CASES
Cases highlited in blue are linked to the actual decision in Findlaw

E.E.O.C. v. Watkins Motor Lines, Inc., 463 F.3d 436 (9/2006) The agency has made no showing, to any court, that Grindle’s weight condition has a physiological cause. Without such evidence, the EEOC cannot show that Grindle’s condition is a “physical impairment” under the ADA and summary judgment is appropriate.

Todd v. City of Cincinnati, 436 F.3d 635 (2/2006) we think that this case should not be decided as a matter of law on the issue of whether the appointing police officials regarded the plaintiff as disabled. There is considerable evidence that two of the appointing officials believed that plaintiff had left the police department due to a disability that would make him unable to perform the duties of a firearms instructor. Accordingly, the judgment of the District Court is reversed and the case remanded for further proceedings consistent with this opinion.

Dillery v. City of Sandusky, 398 F.3d 562 (2/2005) Kelly Dillery is a disabled woman who uses a wheelchair or motorized scooter to move. Dillery sued the City of Sandusky, city commissioners, and several cityemployees, under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, 42 U.S.C. § 1983, and various Ohio state law provisions. She alleged that Sandusky violated the ADA by failing to install proper curb cuts, such that Dillery was forced to ride her wheelchair in the street instead of on the sidewalk. Further, Dillery alleged that Sandusky police officers violated her rights by stopping her and, on several occasions, arresting her for riding her wheelchair in the street. The district court granted summary judgment to the defendants on all counts. Dillery filed a motion for reconsideration, based in part on United States District Judge James G. Carr's ruling in a separate case against Sandusky, Ability Center of Greater Toledo v. City of Sandusky. The district court, based on Judge Carr's ruling, granted Dillery's motion in part, but found that her claims for injunctive relief had been essentially mooted. The defendants filed a notice of appeal, and Dillery filed a notice of cross-appeal. Dillery subsequently moved for attorneys' fees and costs. The district court denied Dillery's motion, finding that even if she was a prevailing party, she was not entitled to any fees. Dillery filed a timely notice of appeal. We affirm the decisions of the district court.

Moorer v. Baptist Memorial Health Care System, 398 F.3d 469 (2/2005) Defendants Baptist Memorial Health Care System and Baptist Memorial Health Care Corporation (collectively "Baptist") appeal the June 3, 2003 judgment of the district court in favor of Plaintiff William "Tate" Moorer on his claim for discriminatory discharge in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12117 ("ADA"). Baptist asserts that the district court erred in finding that it regarded Moorer as disabled and that it discharged Moorer because of his perceived disability. Baptist also challenges the district court's award of $250,000 to Moorer as compensatory damages for emotional distress. Moorer crossappeals the district court's earlier grant of summary judgment in favor of Baptist on his claim under the Family Medial Leave Act, 29 U.S.C. § 2601-2654 ("FMLA"). For the reasons that follow, we AFFIRM the judgment in favor of Moorer on his ADA claim,

Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (10/2004) Ability Center of Greater Toledo, Statewide Independent Living Council, and five individuals with disabilities --collectively, the plaintiffs-appellees/cross-appellants--filed this class action lawsuit against defendants-appellants/cross-appellees the City of Sandusky, Ohio, and Gerald A. Lechner (in his official capacity as Sandusky's city manager). Plaintiffs alleged that defendants violated Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-12165, and related regulations by failing to install proper accommodations for disabled individuals in the course of renovating Sandusky sidewalks and street curbs, and by failing to develop a transition plan for implementing ADA requirements. The district court granted summary judgment to plaintiffs on the former claim and summary judgment to defendants on the latter. Defendants filed a motion for reconsideration of the district court's grant of partial summary judgment to plaintiffs, which was denied. Defendants now appeal this grant of partial summary judgment to plaintiffs and the denial of their motion for reconsideration, while plaintiffs cross-appeal the district court's grant of partial summary judgment to defendants.   We affirm.

Williams v. London Utility Com'n, 375 F.3d 424 (7/2004) Mr. Williams was terminated on February 28, and he applied for disability benefits the very next day. Mr. Williams subsequently filed suit, alleging that he was able to perform his job requirements as of the date of his termination. Mr. Williams has failed to offer sufficient evidence to explain these contradictory statements. Mr. Williams argues that the affidavit of Bobby Turner, M.D. explains the contradiction. This affidavit states that "Mr. Williams' termination of employment at or near the end of February 2001 had a devastating effect upon him emotionally, which, in my opinion, worsened his physical conditions." Furthermore, Dr. Turner opined that "the termination and its emotionally devastating effects upon Mr. Williams rendered him unable to work when combined with his pre-existing physical conditions." Accepting this statement as true, we do not think that it provides a sufficient explanation for the contradictory statements. Dr. Turner's statement was signed on April 25, 2001. While Mr. Williams's health may have declined to the point where he became unable to work during this two-month period, he provides no explanation for how his health declined to the point of being unable to work on March 1, 2001, the date on which he filed for disability benefits and one day after his termination. Because we hold that Mr. Williams's explanation of these contradictory statements was insufficient, we affirm the district court's grant of summary judgment

Smith v. Henderson, 376 F.3d 529, (7/2004) Assuming that Smith was denied a reasonable accommodation that forced her to work well in excess of her medical restrictions, a jury reasonably could infer that the USPS (through Mullin) knew that Smith's working conditions would become intolerable to a reasonable person suffering from her particular disability. As noted, Mullin rescinded and/or refused to honor Smith's hours-of-work accommodation that had been in place since 1997, denied Smith the reasonable accommodation of delegating her non-essential accounting duties, and forced her to work long stretches of over-forty-hour weeks with few or no days off, resulting in the foreseeable consequence that Smith's health would markedly deteriorate. Thus, a reasonable jury could conclude that the USPS knowingly and deliberately "turned its back" on Smith and, therefore, the USPS could foresee that Smith would be compelled to quit her job in order to preserve her health. Cf. Johnson v. Shalala, 991 F.2d 126, 132 (4th Cir.1993) (holding that an employee who was provided some, but not all, of the reasonable accommodations she requested, could not quit and sue her employer under a constructive discharge theory, but recognizing "that a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge"); Hurley-Bardige v. Brown, 900 F.Supp. 567, 573 n. 7 (D.Mass.1995 (noting that a failure to provide a reasonable accommodation could result in a constructive discharge when, for example, an employer "refuse[s] to build a ramp or elevator for an employee confined to a wheelchair, making it impossible for the employee to get to work"). The district court erred in ruling, as a matter of law, that Smith had not suffered a constructive discharge.

Brenneman v. MedCentral Health System, 366 F.3d 412 (4/2004) the district court that plaintiff, as a matter of law, has failed to establish that he was otherwise qualified for the position of Pharmacy Technician with or without reasonable accommodation

Hedrick v. Western Reserve Care System, 355 F.3d 444 (1/2004) In the instant case, we agree with the district court that the referral center scheduler position was a reasonable accommodation and that Hedrick cannot be considered a qualified individual with a disability based upon her rejection of that position. As noted supra, although it is unclear whether WRCS formally offered the position to Hedrick, it is clear, based upon her own deposition testimony, that Hedrick understood that the job was hers if she wanted it and that she preemptively rejected the position by informing Nelson and Foley that she would not take the position because of its low salary

U.S. v. Cinemark USA, Inc., 348 F.3d 569 (11/2003) The district court in this case granted summary judgment against the United States in its suit against Cinemark USA, Inc. (Cinemark) under Title III of the Americans with Disabilities Act (ADA). The government alleged that Cinemark has violated the ADA by designing, constructing, and operating stadium-style movie theaters in a manner that discriminates against wheelchair-using patrons. Specifically, the government argued that Cinemark was not complying with the applicable Justice Department regulation, ADAAG (1) § 4.33.3, which requires that "[w]heelchair areas shall be . . . provided so as to provide people with disabilities . . . lines of sight comparable to those for members of the general public." The district court held as a matter of law that Cinemark was in compliance because its theaters provided wheelchair patrons with unobstructed views of the movie screen from wheelchair seating located amid or adjacent to seating for the general public. The government correctly argues that the "line of sight" aspect of its regulation does not require merely that wheelchair users be provided unobstructed views of the movie screen, but instead requires in addition that the unobstructed views be "comparable" to those of other patrons. Accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion

Justice v. Pike County Bd. of Educ., 348 F.3d 554 (11/2003) To survive summary judgment, Dotson must provide an explanation sufficient to warrant a reasonable juror finding that, despite her statement that she is unable to work, that she could nonetheless perform the essential functions of her job, with or without reasonable accommodation. See Cleveland, 526 U.S. at 807; see also [Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 383 (6th Cir. 1998)]. Dotson provided evidence that she had been able to teach effectively throughout the 1996-97 school year, and although she submitted a request for accommodation to which the school did not respond, she continued to work. Thus, a genuine issue exists as to whether Dotson was a "qualified individual with a disability" under the ADA. In addition, the court never addressed directly the question of whether Dotson was in fact disabled under the ADA. It was error to grant summary judgment on the ADA and Rehabilitation Act claims.

Jones v. City of Monroe, MI, 341 F.3d 474 (8/2003)  The purpose of the one-hour limitation is to encourage patrons to shop at downtown businesses. Waiver of the ordinance limiting parking to one hour in the business district would be "at odds" with the fundamental purpose of the rule. By its very nature, the benefit of one-hour free public parking cannot be altered to permit disabled individuals to park all day without jeopardizing the availability of spaces to other disabled and nondisabled individuals. Such a waiver would also require Monroe to cease enforcement of an otherwise valid ordinance, which by its very nature requires a fundamental alteration of the rule itself.  In addition, the record contains evidence of alternative accommodations available to Jones such as a service which will pick her up at any Monroe parking lot, based on a schedule constructed personally for Jones, and take her to the door of her office building. Accordingly, Jones's requested modification, whether characterized as assignment of a particular parking location or immunity from prosecution, is not a reasonable accommodation required under the ADA. The district court's failure to discuss this issue therefore does not render its denial of the preliminary injunction an abuse of discretion.  Because the district court did not rely upon clearly erroneous findings of fact, improperly apply the governing law, or use an erroneous legal standard, it did not err in denying Jones's request for a preliminary injunction.

Gean v. Hattaway, 330 F.3d 758 (6/2003) As we have already explained, section 1983 claims are not cognizable against a state or its agents acting in their official capacities. Will, 491 U.S. at 71. These defendants in their individual capacities have asserted the defense of qualified immunity, which plaintiffs may overcome only by showing that the rights the defendants allegedly violated were specifically and clearly established in law such that no reasonably competent official in their position would have had any doubt that he was breaking the law. Malley v. Briggs, 475 U.S. 335, 341 (1986). The plaintiffs, however, fail to allege that the defendants' use of plaintiffs' Social Security benefits to pay for part of their current maintenance "excluded [them] from the participation in, . . . denied [them] the benefits of, or . . . subjected [them] to discrimination under any program or activity" on the basis of their disability. 29 U.S.C. § 794(a). Rather, as with their claim under the Medicaid Act, their Rehabilitation Act claim alleges discrimination only in highly general terms. In order to overcome the defense of qualified immunity, the plaintiffs must show that the right allegedly violated was "clearly established in a more particularized . . . sense," Anderson v. Creighton, 483 U.S. 635, 640 (1987), which they have wholly failed to do. Therefore, the plaintiffs may proceed directly under the Rehabilitation Act against the defendants in their official capacities, but plaintiffs' § 1983 claim against the defendants in their individual capacities, were that claim allowed to proceed, would be barred by qualified immunity.

Kolling v. Blue Cross & Blue Shield of Michigan, 318 F.3d 715, (2/2003)   A benefit plan offered by an employer, like those health care benefit plans covering the appellants in the present case, is not goods offered by a place of public accommodation. The appellants did not obtain their health care coverage directly from Blue Cross Michigan nor did they buy their respective policies from an insurance office. Rather, they obtained their benefits through their employer. Thus, there is no nexus between the disparity in benefits and the services which Blue Cross Michigan offers to the public from its office. A public accommodation is limited to a physical place and cannot be applied to the contents of employer-furnished benefit plans.

Lane v. State of Tennessee, 315 F.3d 680 (1/2003) Based on the record before Congress in considering the Americans with Disabilities legislation, it was reasonable for Congress to conclude that it needed to enact legislation to prevent states from unduly burdening constitutional rights, including the right of access to the courts. States have myriad ways to unburden these rights, from the major step of renovating facilities to the relatively minor step of assigning aides to assist in access to the facilities. The record demonstrated that public entities' failure to accommodate the needs of qualified persons with disabilities may result directly from unconstitutional animus and impermissible stereotypes. Title II ensures that the refusal to accommodate an individual with a disability is genuinely based on unreasonable cost or actual inability to accommodate, not on inconvenience or unfounded concerns about costs.  This statutory protection is a preventive measure commensurate to the gravity of precluding access to the courts by those with disabilities. In addition, these requirements are carefully tailored to the unique features of disability discrimination that persists in public services. A simple ban on discrimination against those with disabilities lacks teeth. The continuing legacy of discrimination is too powerful. Title II affirmatively promotes integration of those with disabilities.  Jones and Lane are seeking to vindicate their right of access to the courts in Tennessee. Lane alleges that he has been denied the benefit of access to the courts. Jones similarly alleges that she has been excluded from courthouses and court proceedings by an inability to access the physical facilities. Tennessee responds that the violations alleged are not due process violations. The difficult questions presented by this case cannot be clarified absent a factual record. Because in Popovich we held that Title II is an appropriate means of enforcing the due process rights of individuals, and because this case came to us before any development of the facts, we hold that the district court appropriately denied Tennessee's motion to dismiss this action.

Black v. Roadway Express, Inc., 297 F.3d 445 (7/2002) Plaintiff-Appellant appeals the district court's grant of summary judgment for Defendant-Appellee Roadway Express, Inc. ("Roadway"). Black, a truck driver, filed a complaint against his employer, Roadway, in October of 1998, alleging discrimination in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Black claimed that he was disabled for the purposes of the Act because of a knee injury and that Roadway discriminated against him on the basis of his disability by refusing reasonably to accommodate him. Roadway moved for summary judgment, claiming that Black was not disabled because his knee injury did not substantially limit any of his major life activities. The district court granted Roadway's motion for summary judgment. Because we conclude that Black did not raise a genuine issue of material fact as to whether his knee injury substantially limited him in any major life activities, we AFFIRM the district court's grant of Roadway's motion for summary judgment

Satterfield v. Tennessee, 295 F.3d 611 (7/2002) Plaintiff-Appellant appeals the district court's partial grant of summary judgment in favor of Defendants-Appellees, Renata E. Bluhm, M.D. ("Bluhm") and Occupatient Medical Services, P.C. ("Occupatient") ("defendants"). Satterfield, a former employee of the Tennessee Public Service Commission, was terminated from his position as a Commercial Motor Vehicle Inspector after Bluhm, a physician in private practice at Occupatient, determined from a physical examination that Satterfield was not qualified for the position. Satterfield filed suit in state court against the State of Tennessee, the Tennessee Department of Safety and its Commissioner, Bluhm, and Occupatient, alleging violations of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act, and various state laws claims. The Commissioner, Bluhm, and Occupatient then removed to federal court and moved for summary judgment. Concluding that Bluhm and Occupatient were not "covered entities" for the purposes of Satterfield's ADA and the Rehabilitation Act claims, the district court partially granted their motion and remanded Satterfield's state law claims against them to state court. For the reasons discussed below, we AFFIRM the order of the district court partially granting Bluhm's and Occupatient's motion for summary judgment

Mahon v. Crowell, 295 F.3d 585 (6/2002) In this discrimination case, plaintiff David W. Mahon sues Craven Crowell, Johnny H. Hayes, William H. Kennoy, Skila Harris, and Glenn L. McCullough in their official capacities as directors of his employer, the Tennessee Valley Authority, alleging that TVA classified and fired him on account of a disability in violation of § 791 (commonly referred to as § 501) of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 701 et seq. The main questions before us boil down to two rather esoteric issues: whether the district court erred in granting summary judgment for TVA (1) because Mahon was not disabled from any "major life activity" and (2) because he does not meet the test for being "regarded as disabled" under the acts. We hold that Mahon has not met the statutory test for being disabled, and therefore AFFIRM the district court's decision

MX Group, Inc. v. City of Covington, 293 .3d 326 (6/2002)  Plaintiff, MX Group, Inc., alleged that Defendants discriminated against it because of Plaintiff's association with its potential clients, who are drug addicted persons, by refusing to issue a zoning permit to Plaintiff so that it could open a methadone clinic in the City of Covington. Plaintiff claims that Defendants further discriminated against it by amending the city's zoning ordinance to completely prohibit the clinic from opening anywhere in the city. The district court found that Plaintiff's clients or potential clients were persons with a disability and that Defendants discriminated against Plaintiff because of Plaintiff's association with its clients/potential clients. For the reasons that follow, we AFFIRM.

Cotter v. Ajilon Services, Inc., 287 F.3d 593 (4/2002)  Plaintiff-appellant Gerard Cotter filed claims against his former employer, Ajilon Services, Inc. ("Ajilon"), under the federal Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and Michigan's Persons with Disabilities Civil Rights Act ("PWDCRA"), Mich. Comp. Laws §§ 37.1101 et seq., which substantially resembles the ADA. The district court, finding that Cotter failed to provide evidence sufficient to raise a genuine issue of material fact that he either was actually disabled or regarded as disabled within the meaning of either law, granted Ajilon summary judgment on both claims. For the reasons stated in this Memorandum Opinion, this Court AFFIRMS that decision.

Swanson v. University of Cincinnati, 268 F.3d 307 (9/2001)  According to Sutton, "it is necessary that a covered entity entertain misperceptions about the individual - it must believe either that one has a substantially limiting impairment that one does not have or that one has a substantially limiting impairment when, in fact, the impairment is not so limiting." 527 U.S. at 489. Swanson's supervising physicians recognized that his depression was an impairment but did not perceive it as significantly restrictive of his work as a physician per se. By offering academic assistance and encouraging him to shift to another area of practice, Dr. Bower and other members of the UC staff perceived Swanson as a capable physician, just not a capable surgeon under UC's program. Thus, as Swanson was not substantially limited in any major life activity asserted, he does not qualify as disabled under the Rehabilitation Act or Ohio law.

Kiphart v. Saturn Corp., 251 F.3d 573 (5/2001)  Appellant Jeffrey Kiphart, an employee of Appellee Saturn Corporation, suffers various hand, arm, and neck impairments restricting his mobility. He sued Saturn, his local union, and his parent union under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (1995), after he was removed from his work team, moved through a series of temporary jobs, and finally placed on involuntary medical leave for seven months.(1) Kiphart alleges Saturn improperly used its concept of job rotation, under which each member of a work team rotates through each of the jobs assigned to the team, to justify its refusal to place him on any team assigned one or more tasks he could not perform. Kiphart bottoms his case on the gulf he says exists between the theory of job rotation and its practice at Saturn.   A jury found in favor of Kiphart. The district court, however, ordered the clerk not to enter the verdict. Six months later, the court granted Saturn's in-trial motion for judgment as a matter of law. Kiphart v. Saturn Corp., 74 F. Supp. 2d 769 (M.D. Tenn. 1999). Kiphart appeals from the court's order. Although this case touches on some fascinating issues concerning Saturn's labor-management partnership and its team-based manufacturing process, Kiphart asks us to decide only whether he presented sufficient evidence to support the jury's verdict in his favor. We hold he did. We therefore REVERSE the district court's order and REMAND the case for calculation of post-judgment interest from March 19, 1999, the date the jury rendered its verdict, and for any other proceedings that may be necessary.

E.E.O.C. v. United Parcel Service, Inc., 249 F.3d 557 (5/2001)  the Equal Employment Opportunity Commission seeks reversal of the district court's decision granting summary judgment to the defendant, United Parcel Service, in an action brought by the EEOC under the Americans with Disabilities Act, 42 U.S.C. § 12117(a), on behalf of former UPS employee William Woods. Because we find disputed questions of material fact concerning the company's failure reasonably to accommodate Woods's disability by permitting him to transfer to another UPS facility, we conclude that summary judgment was inappropriate and reverse.

Henderson v. Ardco, Inc., 247 F.3d 645 (4/2001)  We AFFIRM the district court's summary judgment that there was no genuine issue of material fact that the plaintiff was not the subject of retaliatory discharge for filing a workman's compensation claim. However, we hold that the district court erred in granting summary judgment to the defendant with regard to whether the plaintiff was regarded as disabled, and we therefore REVERSE the judgment entered below and REMAND the case to the district court for further proceedings consistent with this opinion.

Parry v. Mohawk Motors of Michigan, Inc., 236 F.3d 299 (12/2000)   Plaintiff has failed to allege any evidence that would lead a reasonable jury to conclude that Defendants regarded or "perceived" him as having a substantially limiting disability--a drug addiction. Specifically, Plaintiff has failed to produce any evidence that Defendants believed he was illegally using drugs to the extent that one or more of his major life activities were substantially limited. Plaintiff's contention, absent any evidence, amounts to the mere conjecture that he was fired because Defendants perceived him as having a drug addiction. Therefore, Plaintiff has failed to show that he is perceived as having a "disability" as defined under the ADA. Moreover, we conclude that Plaintiff has not produced any evidence to show that he was replaced by a person who was not disabled. Having failed to establish to all the elements of a prima facie case, we do not consider the burden-shifting analysis under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-56 (1981), and, therefore, conclude that the district court properly granted summary judgment as to Plaintiff's ADA claim.

Hein v. All America Plywood Co., Inc., 232 F.3d 482 (11/2000)   The essence of Hein's claim is captured in the following argument in his brief: "The bottom line is that at the time he was fired, by no fault of his own, plaintiff did not have his medication." But it basically was his own fault. Hein concedes in his brief "that it is his responsibility to obtain his medication," and that "he made no attempt to obtain an earlier appointment or temporary refill from one of the other two doctors in the office." Knowing that he must be continuously medicated in order to perform his job as a truck driver, it was his responsibility to not wait until the last minute to obtain refills of his medicine. As pointed out in AAP's brief, Ludwinski "did not hide Hein's medication, or prevent him from getting an appointment or a short supply," and "did not even know Hein had high blood pressure until July 7, 1997 at approximately 3:00 p.m. when he was required to resolve the issue of who would take the Cleveland run." Consequently, Hein has failed to establish a valid disability claim

Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 276 F.3d 808 (2000)   This case presents a question of first impression in this court: whether Congress validly abrogated Eleventh Amendment immunity by applying Title II of the Americans with Disabilities Act (ADA) to the States. We hold that it did not and that, as a consequence, we must reverse the district court's judgment for the plaintiff.

Williams v. Toyota Motor Mfg., Kentucky, Inc., 224 F.3d 840 (2000)  Although we have concluded that Williams is disabled and that there is a triable issue of fact as to whether the defendant auto manufacturer failed to reasonably accommodate her disability, it is important to note that Williams must still demonstrate the remainder of her prima facie case, and that the defendant is still free to raise any viable defenses as to why it was unable to accommodate Williams, such as undue hardship and business necessity. To the extent that there is concern that employers may be required to answer in court "for every employment practice that draws distinctions based on physical attributes," nothing in this opinion should be construed to undermine an employer's ability to rely on an appropriate affirmative defense. Sutton, 119 S.Ct. at 2160 (Stevens, J., dissenting).

Hoskins v. Oakland Cty. Sherrif's Dept., 227 F.3d 719 (2000)  We agree that Hoskins's request would essentially require the creation of a new position rather than reassignment to an otherwise existing vacant one. As we have made clear, an employer's duty to reassign an otherwise qualified disabled employee does not require that the employer create a new job in order to do so. See Cassidy, 138 F.3d at 634. We therefore conclude that Hoskins has not met her burden of showing that her proposed accommodation is a reasonable one.

Burns v. Coco-Cola Enterprises, Inc., 222 F.3d 247 (2000)  Burns failed to comply with KCC's legitimate, non-discriminatory transfer request policy, which KCC was not required by the ADA to waive in order to accommodate his disability. Because Burns failed to request a transfer to another position within the Company that he was qualified to perform, Burns failed to establish that he is a qualified individual with a disability entitled to recover under the ADA or the THA

Kennedy v. Superior Printing Co., 215 F.3d 650 (2000)   The record clearly shows that Superior made numerous attempts to acquire medical documentation of Kennedy's condition and that Kennedy persistently refused to cooperate. During April and May of 1996, repeated requests were made of Kennedy to bring in further medical documentation demonstrating the need for accommodation. When those efforts failed, Superior sent Kennedy a letter indicating that it would arrange and pay for a medical exam. Superior scheduled two independent medical examinations, both of which Kennedy failed to attend. The record shows that Superior was extremely patient and did everything it could to assess the medical condition of Kennedy. Superior never indicated that it would deny Kennedy's request to work through lunch, it merely wished to assess Kennedy's medical condition. Under these facts, there is no ADA violation and Kennedy's claim must be dismissed.

Thompson v. Williamson County, Tennessee, 219 F.3d 555 (2000)  Although there is no doubt that their son was disabled under the ADA, the Thompsons have failed to produce any evidence that he was denied either access to a public service, or if he was, that such denial was because of his disability.(5) See Bonds, 20 F.3d at 701 (when reviewing summary judgment, court may only consider pleadings, evidence, and affidavits submitted prior to plaintiff's motion to alter or amend judgment); Ogletree v. McNamara, 449 F.2d 93, 99 (6th Cir. 1971)(facts not alleged in amended complaint upon which summary judgment granted are not properly before court). The record indicates that when the Thompsons called 911, they requested and received police assistance. Although they wanted their son taken to a medical facility, it would have still been necessary for Gooding to disarm the decedent before he could be transported anywhere. Gooding's failure to disarm, or take the decedent under control, was not because he was inadequately trained to deal with disabled individuals, but because the decedent threatened him with a deadly weapon before he could subdue him. Thus, if the decedent was denied access to medical services it was because of his violent, threatening behavior, not because he was mentally disabled. Cf. Sandison v. Michigan High School Athletic Ass'n, Inc., 64 F.3d 1026 (6th Cir. 1995) (plaintiffs prevented from participating in high school sports due to school's age requirement, not because of their learning disability).

Bartell v. Lohiser, 215 F.3d 550 (2000)  Bartell, however, has not alleged a genuine issue of material fact that she was denied custody of William because of her disability, or denied any accommodations because of her disability. See, e.g., Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (holding that no ADA violation was shown because the disabled were not denied benefits that were otherwise available). Both Defendants and the Probate Court relied on wide-ranging evidence pertaining to Bartell's conduct, behavior, and history of abuse in terminating her parental rights. Moreover, Bartell essentially concedes that, prior to the termination decision, Defendants attempted to equip her with the skills necessary to care for William by providing parental aides, parental classes, and psychological therapy. Indeed, on appeal, Bartell does not even suggest that any services provided non-disabled persons were not provided to her. We therefore conclude that the district court did not err in granting Defendants qualified immunity on Bartell's ADA and Rehabilitation Act claims.

Doe v. Woodford County Bd. of Educ., 213 F.3d 921 (2000)    The facts of this case suggest that defendants were in a catch-22 situation. On one hand, defendants had to be aware of possibly infringing upon John's civil rights under the Rehabilitation Act and the ADA if they excluded John from participation on the basketball team. On the other hand, defendants faced potential liability from other students and parents if they allowed John to play on the team and another student accidently became exposed to John's contagious condition. Under the circumstances, defendants acted quite appropriately when they placed John on "hold" status over a brief three week period while defendants decided how they should proceed. According to principal Burkich's memorandum dated November 11, 1996, it appears that after careful consideration and weighing of all options, defendants decided to allow John to participate fully on the team with no further restrictions. It is at this time John, by his own volition, chose to no longer remain a member of the team. We therefore find no violation of John's rights as secured by the Rehabilitation Act or the ADA and affirm the grant of summary judgment for the defendants. We pretermit any issue concerning exhaustion of administrative remedies under the Rehabilitation Act and the ADA. The district court did not reach this issue, and we have chosen to review the district court's decision on the merits.

Plant v. Morton Intern., Inc., 212 F.3d 929 (2000)    We hold that Plant has not produced sufficient evidence from which a factfinder could conclude that he was disabled. The definition of "physical or mental impairment" under the ADA clearly includes Plant's musculoskeletal condition of knee contusions and back strain, see 29 C.F.R. § 1630.2(h)(1) (1999), and the term "major life activity" includes many of those activities described by the plaintiff: the EEOC regulations and the appendix to those regulations identify walking, performing manual tasks, working, standing, and lifting as major life activities, see 29 C.F.R. §1630.2(i); Interpretive Guidance 29 C.F.R. §1630.2(i) App. However, Plant has not made a sufficient showing that his impairment substantially limited his ability to perform those major life activities

Martin v. Barnesville Exempted Village School Dist. Bd. of Educ., 209 F.3d 931 (2000)    The ADA does not protect plaintiff from his own bad judgment in drinking on the job. The plaintiff cannot force defendant to hire him as a school bus driver when there is a serious risk that he may again drink on the job, have an accident and kill a group of school children. Any suggestion to the contrary is absurd on its face. For a federal court to interpret the ADA to require a school board to hire as a school bus driver a person guilty of drinking on the job and thereby run the risk of an accident would raise serious constitutional problems. If an accident should occur and students were injured or killed, the school board would be subject to large compensatory and punitive damages and open itself to the moral condemnation of the community. Therefore, even if we assume that plaintiff has established a prima facie case of discrimination, defendant has articulated a legitimate, non-discriminatory reason for its actions. Plaintiff has not demonstrated that this stated reason is a pretext for any unlawful discrimination.

Crocker v. Runyon, 207 F.3d 314 (2000)  Randal Crocker charges that the United States Postal Service refused to hire him due to his disability, in violation of the Rehabilitation Act of 1973. Crocker pled both disparate treatment and disparate impact causes of action below, arguing that he was able to perform the essential functions of the position he sought despite his disability. Because Crocker failed to offer medical evidence contemporaneous with his nonhiring to contradict the evidence upon which the Postal Service relied, we hold that he did not meet his burden of proof for either cause of action.

Parker v. U.S. Dept. of Transp., 207 F.3d 359 (2000)   We find the DOT's argument unpersuasive. When the FHWA initiated the waiver program, it relied on several studies which indicated that "the best predictor of future performance by a driver is his past record of accidents and traffic violations." 63 Fed. Reg. 1524, 1525 (1998). Parker has clearly demonstrated that despite his multiple impairments, he is able to safely operate a CMV. Furthermore, the DOT has not even attempted to consider a driving test with a review of Parker's safety record. By failing to assess Parker's actual capabilities, the DOT has in essence created a per se rule against granting vision waivers to individuals with multiple disabilities, thereby limiting such individuals' employment opportunities. This stands in direct contradiction to the goals and purpose of the Rehabilitation Act which is to provide equal opportunities for disabled individuals, including assisting such individuals in obtaining substantial employment. 29 U.S.C. §§ 701(a)(6)-(b)(2).

Holiday v. City of Chattanooga, 206 F.3d 637 (2000)   When he applied for a position as a police officer with the City of Chattanooga, Louis Holiday was entitled to be evaluated based on his actual abilities and the relevant medical evidence, and to be protected from discrimination founded on fear, ignorance or misconceptions. Holiday has adduced sufficient evidence from which a jury could conclude that the City refused to hire him as a police officer because of its unsubstantiated fears of HIV transmission, despite the absence of objective medical evidence that he was physically incapable of performing the essential functions of the position. Accordingly, the district court erred in granting the City's motion for summary judgment.

Walsh v. United Parcel Service, 201 F.3d 718 (2000)  Plaintiff argues that while he was not specific in his request, he only needed ninety days for additional evaluation. However, plaintiff has made no credible showing why the nearly year and a half leave defendant gave him was somehow an inadequate period for him to obtain an evaluation. Further, the evaluation that plaintiff received from his homeopathic physician, months after his termination, still did not indicate a time frame or circumstances under which plaintiff could return to work. The ADA was designed to eliminate discrimination against individuals with disabilities so that they could become productive members of the workforce. See 42 U.S.C. § 12101; 29 C.F.R. pt.1630 (1996). However, when the requested accommodation has no reasonable prospect of allowing the individual to work in the identifiable future, it is objectively not an accommodation that the employer should be required to provide. See cases cited in supra note 4. We therefore hold that when, as here, an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects for recovery, is an objectively unreasonable accommodation. Cf. Hudson v. MCI Telecommunications Corp. , 87 F.3d 1167, 1169 (6th Cir. 1996) (holding that where plaintiff has failed to present any evidence of the expected duration of her impairment as of the date of her termination, a request for medical leave was unreasonable).     Because continued leave was an unreasonable accommodation, we find that the plaintiff's ADA claim and his claim under Kentucky's equivalent provision, Ky. Rev. Stat. Ann. § 344.040, were properly dismissed by the district court on defendant's motion for summary judgment.

Sullivan v, River Valley School Dist., 197 F.3d 804 (1999)  Sullivan argues that his employer, the River Valley School District, and its then-Superintendent, Charles Williams, regarded him as disabled and illegally suspended him without pay for refusing to submit to mental and physical fitness-for-duty examinations ordered by the school board. The district court held that Sullivan failed to provide evidence sufficient for a jury to infer that he received adverse treatment due to being regarded as disabled. Because we agree that an employer's ordering an employee to undergo mental and physical examinations does not suffice to show that an employer regards an employee as disabled, we affirm the district court's grant of summary judgment to Defendants.

Hopkins v. Electronic Data Systems Corp., 196 F.3d 655 (1999)  We agree with Ercegovich that a plaintiff can succeed only if he can demonstrate purposeful discrimination in not being offered an opportunity to transfer to an available position for which he is qualified. To establish such a claim, Ercegovich recognizes that comparisons must be made to persons "similarly situated in all of the relevant aspects." Id. at 352; see generally Pierce v. Commonwealth Life Ins. Co. , 40 F.3d 776 (6th Cir. 1994); Mitchell v. Toledo Hospital , 964 F.2d 577 (6th Cir. 1992). Hopkins has not made such a showing in this case. There was simply - unlike in Ercegovich - no indication of a "discriminatory corporate culture" at EDS, nor was there a "discriminatory atmosphere" nor any hostile "cumulative managerial attitude" against Hopkins. See id. at 356, 357. Rather, there was an alleged "off-hand comment" by a single manager. See id. at 356. Therefore, we respectfully disagree with the dissent's position that Ercegovich requires a different result.    In light of the foregoing, we conclude that the district court was correct in granting summary judgment to defendant EDS

Doren v. Battle Creek Health System, 187 F.3d 595 (1999)    Doren has a number of physical limitations, but she has not presented sufficient evidence of a disability under the Act. The testimony of Dr. Ancell, a rehabilitation consultant, is not in itself sufficient to create a genuine issue of material fact as to whether Doren is disabled. Doren has a long history of employment with Battle Creek, which made every effort to work around her needs. Although this question may have been better addressed under the issue of reasonable accommodations, we are bound by the issue of disability. As tragic as cases of discharge are, Doren has not presented enough evidence to create a genuine issue of fact as to whether she is disabled under the Act.

Bratten v. SSI Services, Inc., 185 F.3d 625 (1999)  Because Bratten failed to meet his burden that he was otherwise qualified as an automotive mechanic or for any of the positions to which he sought reassignment, the defendants were entitled to summary judgment

Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (1999).  We have examined several factors that seem to us relevant to incorporation, including: the absence of a private party damages remedy in ADA, the effect of Georgia's own statutory system for access to public facilities, ADA's goals of protecting the disabled and establishing standards addressing discrimination against them, and Georgia's standards for deciding whether it will interpret a statute as constituting negligence per se. Taking all this into account, we believe that if the Georgia Supreme Court were faced with the facts of this case, it would conclude (1) that whether Wal-Mart was in violation of the ADA by not installing grab bars in the toilet stall used by plaintiff, and thus was negligent per se, is a question for the jury, and (2) that Mrs. Smith has a private right of action against Wal-Mart under Georgia law for its failure to implement any ADA-mandated requirements designed for the protection of persons such as herself.

Hammon v. DHL Airways, Inc., 165 F.3d 441 (1999).  We agree with the district court's decision that Plaintiff failed to make a prima facie case under the ADA. Plaintiff failed to show that he was "disabled" within the meaning of the ADA while he worked at DHL. Plaintiff claims that he suffered from an anxiety disorder that interfered with his ability to do his job at DHL. However, by Plaintiff's own admission, he did not meet with a doctor until after he resigned, and the doctor who examined him did not make a diagnosis of his condition. Plaintiff also failed to establish that his employer knew or should have known about his disability. An employer has notice of the employee's disability when the employee tells the employer that he is disabled. See Gantt v. Wilson Sporting Goods Co. , 143 F.3d 1042, 1046 (6th Cir. 1998). "The employer is not required to speculate as to the extent of the employee's disability or the employee's need or desire for an accommodation." Id . at 1046-47. Although Plaintiff told Sarsfield and Pebler about his loss of confidence, by his own admission he never suggested that his emotional problems stemmed from a condition of disability. Plaintiff further failed to establish that he was qualified for his position with or without accommodation. By Plaintiff's own admission, he had trouble flying the 727 Aircraft even before the screaming incident with Mahoney, which was the alleged cause of his nervous condition. Additionally, Plaintiff offered no proof that he filed a request under the ADA while he was at DHL and therefore he failed to prove that he requested an accommodation. Finally, Plaintiff failed to establish that he suffered an adverse employment decision because hevoluntarily resigned. Because Plaintiff failed to make a prime facie case under the ADA, the district court properly dismissed his claim

Hamlin v. Charter Tp. of Flint, 165 F.3d 426 (1999).  Robert W. Hamlin and his wife, Jeanne E. Hamlin, filed an action against the Charter Township of Flint, the Flint Fire Department, Fire Chief Greg Wright, and Township Supervisor Sally Shaheen Joseph (collectively "Flint"), alleging that Flint terminated Hamlin from his position as the Assistant Fire Chief in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Michigan Handicapper's Civil Rights Act ("MHCRA"), Mich. Comp. Laws §§ 37.1101-37.1607. For the reasons set forth below, we AFFIRM the jury verdict in Hamlin's favor and the award of prejudgment interest, REVERSE the pension benefits' offset and the 50% attorneys' fee reduction as ordered by the district court, REINSTATE the award of attorneys' fees as determined prior to the 50% reduction, and REMAND the case for the entry of an amended judgment consistent with this opinion.

Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432 (1998).  That plaintiff told an academic counselor at the College that she thought she might have adult attention deficit disorder simply did not impose an obligation to offer accommodations. See Goodwin v. Keuka College , 929 F. Supp. 90, 94 (W.D.N.Y. 1995) (no obligation to accommodate arose from knowledge that plaintiff was seeking testing for learning disability).   ⁶   Moreover, the academic counselor acted appropriately in referring plaintiff for evaluation. Although the Counseling Services did not conclude plaintiff had ADHD, the evaluation did find plaintiff had difficulties and offered assistance. Nonetheless, plaintiff did not get further counseling, seek another psychiatric evaluation, or even release the evaluation to the College untilafter she had already failed two courses. We reject plaintiff's assertion that the College owed plaintiff greater accommodations during her second year in the program because its health services provider failed to diagnose ADHD earlier. Nor was it unreasonable for Hetherington to reject the handwritten note of a medical doctor stating plaintiff was being treated for ADHD and require an authoritative diagnosis of the learning disability that had evaded detection all of plaintiff's life.

Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F3d 775 (1998).  As for Northeast's propositions that "the termination of Ms. Cehrs was so remote from [its] acquisition of the knowledge of Ms. Cehrs' condition that the claim of discrimination should be found refuted," and that it is unreasonable to conclude that now it would choose to discriminate against Cehrs and terminate her employment because of her psoriasis when it had always accommodated her in past, we find these arguments unpersuasive in the summary judgment context. These arguments are more appropriate to present to a jury than as a basis for judgment as a matter of law. Furthermore,the accommodation requested by Cehrs in the instant case differs substantially from the minor rescheduling accommodated in the past. There is no reason to assume that because Northeast had accommodated Cehrs with her routine doctor visits, that it would not discriminate now when faced with a more burdensome accommodation. Based on all the above, we conclude that a genuine issue of material fact exists as to whether Northeast is entitled to rely on its proffered reason for terminating Cehrs

Johnson v. City of Saline, 151 F.3d 564 (1998).  Besides being wrong that the station was closed to the public,   ³   the district court erred in its general view of the breadth of Title II. After the district court's decision, however, the Supreme Court rejected the Torcasio   ⁴   view of Title II in Pennsylvania Dep't of Correc. v. Yeskey , 118 S. Ct. 1952 (1998), holding that Title II protection extends to state prisoners, and ignoring any public/private distinction. As discussed above, Title II is broadly applicable to all of the activities of a public entity. This requirement is subject, as also discussed above, to the bounds of reasonableness. We cannot conclude in this case, however, that the stateestablished as a matter of law that no reasonable accommodation was required or alternately that no reasonable accommodation was possible.   We leave it to the district court to determine on the merits whether the station is a public entity and the city is thereby subject to liability, or whether the city is subject to liability merely as a landlord. This distinction may factor into the district court's determination of whether or not the city is actually liable in this case (a question we do not purport to have answered here), since the reasonableness of an accommodation may depend on the context in which the city is providing it. Based on the foregoing, then, we conclude that the district court erred in dismissing Johnson's Title II claims on summary judgment.   We formalize these dicta today, and hold that compensatory damages are available under Title II of the ADA, by extension from their availability under the Rehabilitation Act and Title VI

Penny v. United Parcel Service, 128 F.3d 408 (1997).  The district court did not err in finding that the plaintiff is not disabled. It must be remembered that he is not claiming that his impairment renders him unable to perform his duties at UPS. He is claiming disability solely on the basis of a limitation on walking during a limited time. Although the plaintiff may well experience some difficulty in walking, the probative evidence, even when viewed in the light most favorable to the plaintiff, does not raise a genuine issue of material fact as to whether the plaintiff's impairment substantially limits his ability to walk. This being true, we need not consider whether Mr. Penny could perform the essential functions of his job, with or without accommodation, or whether UPS in fact reasonably accommodated the plaintiff.

Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (1997).  Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12182-12189 ("ADA"), prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. In the instant case, we are asked to determine whether Title III of the ADA prohibits an employer from providing to its employees a long-term disability plan issued by an insurance company which contains longer benefits for employees who become disabled due to a physical illness than for those who become disabled due to a mental illness. For the reasons set forth below, we conclude that such a distinction is not prohibited.

Roush v. Weastec, Inc., 96 F.3d 840 (1996).  it is undisputed that plaintiff's kidney is no longer obstructed and no longer affects her ability to work. Because plaintiff's kidney condition was temporary, it is not substantially limiting and, therefore, not a disability under the ADA. Further, the mere possibility that a kidney blockage will recur or that further surgery will be needed is not sufficient to establish that her condition is substantially limiting. See Katz v. City Metal Co., Inc. , 87 F.3d 26, 32 (1st Cir. 1996).   We conclude, therefore, that plaintiff has created an issue of material fact as to whether her bladder condition substantially limits her working. Accordingly, we remand this claim to the District Court for consideration of whether defendant is nonetheless entitled to summary judgment, or, alternatively, for a trial on the merits of plaintiff's ADA claim based on her bladder condition.

Burns v. City of Columbus, Dept. of Public Safety, Div. of Police, 91 F.3d 836 (1996).   Burns has failed to sustain his burden of presenting a genuine issue of material fact as to one element of his prima facie case and, even if we assume that he has established his prima facie case, he has failed to show that the City's proferred legitimate reasons for terminating him are untrue. The City, therefore, is entitled to judgment as a matter of law

Maddox v. University of Tennessee, 62 F.3d 843 (1995).  The plaintiff-appellant, Robert Maddox, a former assistant football coach at the University of Tennessee, brought suit against the school, its Board of Trustees, and its athletic director, Doug Dickey (collectively "UT"), under § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq. , and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. , alleging discriminatory discharge on the basis of his disability, alcoholism. The district court granted UT's motion for summary judgment, concluding that Maddox was not terminated solely by reason of, or because of, his handicap, but rather, because of a well-publicized incident in which Maddox was arrested for driving under the influence of alcohol. Maddox appealed. We AFFIRM.

Stoutenborough v. National Football League, Inc., 59 F.3d 580 (1995).  The complaint, as subsequently amended, alleged that the National Football League's "blackout rule," which prohibits the live local broadcast of home football games that are not sold out seventy-two hours before game-time, violates the Americans With Disabilities Act of 1990, the Television Decoder Circuitry Act of 1990, the Communications Act of 1934, and the Rehabilitation Act of 1973.   We have accepted the facts alleged in the complaint as true, as we must under a 12(b)(6) motion to dismiss for failure to state a claim. Nishiyama v. Dickson County , 814 F.2d 277, 283 (6th Cir. 1987). The law as we have reviewed it is clear. These facts simply do not establish the violation of a protected right. Therefore, we believe that the district court was correct in finding that Stoutenborough and Self-Help for Hearing Impaired Persons failed to state a cognizable claim. Accordingly, the judgment of the district court is AFFIRMED

Simms v. National Highway Traffic Safety Admin., 45 F.3d 999 (1995).  We have examined several factors that seem to us relevant to incorporation, including: the absence of a private party damages remedy in ADA, the effect of Georgia's own statutory system for access to public facilities, ADA's goals of protecting the disabled and establishing standards addressing discrimination against them, and Georgia's standards for deciding whether it will interpret a statute as constituting negligence per se. Taking all this into account, we believe that if the Georgia Supreme Court were faced with the facts of this case, it would conclude (1) that whether Wal-Mart was in violation of the ADA by not installing grab bars in the toilet stall used by plaintiff, and thus was negligent per se, is a question for the jury, and (2) that Mrs. Smith has a private right of action against Wal-Mart under Georgia law for its failure to implement any ADA-mandated requirements designed for the protection of persons such as herself.

Gazette v. City of Pontiac, 41 F.3d 1061 (1994).

Doherty v. Southern College of Optometry, 862 F.2d 570 (1988).

Tinch v. Walters, 765 F.2d 599 (1985).

Jasany v. U.S. Postal Service, 755 F.2d 1244 (1985).

Jennings v. Alexander, 715 F.2d 1036 (1983).