Tammy Rosebrough v. Buckeye Valley High School , 582 F. App'x 647 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0769n.06
No. 13-3371
FILED
Oct 08, 2014
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
TAMMY ROSEBROUGH, )
)
Plaintiff-Appellant, )
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
BUCKEYE VALLEY HIGH SCHOOL, )
SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
)
)
BEFORE: DAUGHTREY, McKEAGUE, and GRIFFIN, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. In this disability discrimination case,
plaintiff Tammy Rosebrough appeals the district court’s order of summary judgment, which
dismissed all of her claims against defendant Buckeye Valley High School. Rosebrough, who is
missing her left hand, alleged that Buckeye Valley discriminated against her on the basis of this
disability when it prevented her from becoming employed as a bus driver for the school. This
appeal is Rosebrough’s second appearance before us. In an earlier decision, the district court
dismissed Rosebrough’s claims on summary judgment, finding that she had failed to satisfy an
element of her prima facie burden; we reversed and remanded. On remand, the district court
again granted summary judgment, finding fault with a different element of the prima facie case.
For the reasons set out below, we affirm the judgment of the district court.
No. 13-3371
Rosebrough v. Buckeye Valley
FACTUAL AND PROCEDURAL BACKGROUND
The facts in this case are not in serious dispute. In our earlier decision, we summarized them
as follows:
Tammy Rosebrough was born without a left hand. In September 2007,
Rosebrough applied for a cook’s position at Buckeye Valley North High School.
Rosebrough interviewed with department supervisor Rodger Cope, who told her
the school was in desperate need of bus drivers and asked if she would be
interested in that position. Cope mentioned he would need to check with the State
to see if there were any restrictions that would prevent Rosebrough from driving a
school bus. Rosebrough said she wanted to speak with her family, then called the
next day to say she was interested in the position. Cope told her he was still
waiting to hear back from the State about the restriction issue. In the meantime,
Cope released a memorandum to employees citing the school’s need for bus
drivers.
Rosebrough later called Cope to ask “what was the hold up,” and Cope said again
he would contact the State. A few days later, on October 3 or 4, Cope called
Rosebrough to inform her that a waiver is required from the Ohio Department of
Education before an individual who is missing a limb is allowed to operate a
school bus and told her to come to the office to pick up the waiver forms.
Rosebrough received approval of the waiver from the Department of Education
several weeks later on January 23, 2008. The State rejected Rosebrough’s first
two waiver submissions because the first waiver’s medical evaluation was
completed by a physical therapist, instead of the required orthopedic surgeon or
physiatrist, and the second waiver was not filled out completely. Rosebrough
testified she relied on Cope’s instructions and “filled out what [Cope] told me to
fill out.”
One or two days before Rosebrough received her waiver, Sandy Presley, a
Buckeye Valley bus driver trainer, contacted Rosebrough to schedule her training,
which began soon thereafter with another trainer, Deanna Carper. On February
15, Rosebrough met with Cope to discuss some issues she was having with her
training. Relevant to this case, Rosebrough complained that Presley made
discriminatory comments to her about her disability on two separate occasions.
On February 5, Presley said Rosebrough “was going to need a lot more [training]
hours . . . because of [her] arm” than another trainee who “knew the bus because
he worked on cars and he was a race car driver.” On February 9, in front of
Carper and the other trainee, Presley told Rosebrough she “won’t be able to drive
bus 4 or 11 . . . because of [her] hand” since the doors on those buses are difficult
to open. Presley denies making statements referencing Rosebrough’s disability.
Cope told Rosebrough he would speak with Presley about the comments.
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Cope called Rosebrough for a follow-up meeting in his office where he said
Carper and Presley told him Rosebrough was speeding, braking too fast, and not
listening to instructions. Rosebrough testified Cope said “it was his trainer’s
responsibility to make sure that I knew what I was doing and that it was his job to
fire me if I wasn’t going to do the proper job.” She testified Cope said she “had
become high maintenance,” slammed his fist down on the desk, and said “[t]he
parents at Buckeye Valley will not be happy with you as a driver.” Rosebrough
believed Cope meant the parents would not want Rosebrough because she had a
hand missing. On February 19, Rosebrough and her husband met with the
superintendent, John Schiller, who said he and Cope would discuss the issue.
When Rosebrough did not hear anything from Schiller for several days, she called
him and he apologized for not getting back with her and said “they would be more
than happy to have [her] as a driver at Buckeye Valley.”
After Rosebrough resumed her training, Carper suggested she contact the State to
schedule her commercial driver’s license (“CDL”) certification test which
required Rosebrough to attend with a trainer and a school bus. Carper told
Rosebrough she could come any day or time, so Rosebrough scheduled her test
for March 20. On the morning of March 19, Carper called Rosebrough to say she
could not attend the test because Cope had refused to let other bus drivers split
Carper’s bus route and she was unable to get a substitute. Rosebrough cancelled
the test with the State and did not ask the State or Carper to reschedule because
she “believe[d] there would never be a substitute driver” available to allow a
trainer to take her to get her test “after everything they had done to me.”
After canceling her test with the State, Rosebrough called Superintendent Schiller
and requested her paperwork so she could finish her training and obtain her CDL
elsewhere. Over the next several months, Rosebrough contacted several other
testing centers and school districts but learned she could only be trained by the
school district that ultimately hired her. Rosebrough never contacted Buckeye
Valley again to return and finish her training.
Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 429-30 (6th Cir. 2012).
Rosebrough subsequently filed suit against Buckeye Valley, pursuant to 42 U.S.C.
§ 1983, asserting claims for discrimination and disparate treatment under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Ohio Revised Code, § 4112.02 et seq.
Buckeye Valley moved for summary judgment, attacking the sufficiency of Rosebrough’s prima
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facie case. The district court granted Buckeye Valley’s motion, finding that Rosebrough was not
“otherwise qualified” to be a school bus driver because she did not have a CDL. Rosebrough v.
Buckeye Valley High Sch., 2:09-CV-182, 2010 WL 3036862 (S.D. Ohio Aug. 2, 2010); see Plant
v. Morton Int’l, Inc., 212 F.3d 929, 936 (6th Cir. 2000) (stating that at prima facie stage, ADA
plaintiff must make showing that she was “otherwise qualified for [the] previous
position . . . with or without reasonable accommodation”). Rosebrough appealed, and we
reversed, finding that “[i]t is Rosebrough’s ADA-covered position as a trainee that is at issue,
and there can be no logical basis for requiring her to have a CDL to be ‘otherwise qualified’ for
the position of training to obtain a CDL.” Rosebrough, 690 F.3d at 433. Therefore, we
concluded, “having a CDL was not necessary for Rosebrough to perform the essential functions
of her training position, and the district court erred in holding otherwise.” Id.
We remanded to permit the district court to address, in the first instance, the other
elements of Rosebrough’s prima facie case. On remand, the district court again granted
summary judgment for Buckeye Valley. Rosebrough v. Buckeye Valley High Sch., 2:09-CV-
182, 2013 WL 633867 (S.D. Ohio Feb. 20, 2013). It found that Rosebrough had failed to
establish a prima facie case because the record did not show any adverse action taken against
Rosebrough by Buckeye Valley and that Rosebrough herself was responsible for her decision to
abandon the CDL test. Rosebrough again appealed to this court.
DISCUSSION
Standard of Review
We review a district court’s grant of summary judgment de novo. Trustees of Detroit
Carpenters Fringe Benefit Funds v. Indus. Contracting, LLC, 581 F.3d 313, 317 (6th Cir. 2009).
Judgment on this basis is appropriate “if the pleadings, the discovery and the disclosure materials
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on file, and any affidavits ‘show that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Burgess v. Fischer, 735 F.3d 462, 471 (6th
Cir. 2013) (quoting Fed. R. Civ. P. 56(a)). There is “no genuine issue for trial where the record
‘taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Id.
(quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In
deciding the motion, “the district court must construe the evidence and draw all reasonable
inferences in [Rosebrough’s] favor.” Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th
Cir. 2008). However, “the mere existence of a scintilla of evidence in support of the non-moving
party is insufficient to defeat a motion for summary judgment.” V & M Star Steel v. Centimark
Corp., 678 F.3d 459, 465 (6th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986)).
Discrimination under the ADA
Rosebrough asserts three claims under the ADA and three corresponding claims under
the Ohio Revised Code: employment discrimination based on disability, employment
discrimination based on perceived disability, and employment discrimination based on disparate
treatment. Because disability discrimination under Ohio law is treated similarly to
discrimination under the ADA, “we may review Rosebrough’s state and federal claims solely
under the ADA analysis.” Rosebrough, 690 F.3d at 431.
An ADA plaintiff may show discrimination through direct or indirect evidence. Talley v.
Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1105 (6th Cir. 2008). Rosebrough offers
only indirect evidence of discrimination; as a result, the burden-shifting framework of
McDonnell Douglas Corp. v. Green applies. Nance v. Goodyear Tire & Rubber Co., 527 F.3d
539, 553 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
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Under this framework, Rosebrough must first establish a prima facie case of discrimination.
Once she does so, the burden shifts to Buckeye Valley to present a nondiscriminatory reason for
the adverse action it took against her. Id. If Buckeye Valley succeeds in doing so, Rosebrough
must identify evidence from which a reasonable jury could conclude that Buckeye Valley’s
proffered non-discriminatory reason is pretextual. Id. At the prima facie stage, Rosebrough’s
burden is not onerous. Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 364 (6th Cir.
2007) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)), abrogated on
other grounds by Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 317 (6th Cir. 2012)
(en banc).
The elements of Rosebrough’s three ADA claims largely overlap. In order to establish a
prima facie case of disability-based discrimination under the ADA, Rosebrough must show that
she is disabled but is otherwise qualified for the position, with or without reasonable
accommodation; that she suffered an adverse employment decision; that the employer knew or
had reason to know of the plaintiff’s disability; and either that the position remained open while
the employer sought other applicants or the disabled individual was replaced. See Monette v.
Elec. Data Sys. Corp., 90 F.3d 1173, 1186 (6th Cir. 1996), abrogated on other grounds by Lewis,
681 F.3d at 317. A perceived disability claim applies essentially the same prima facie test,
except that a nondisabled plaintiff may satisfy the first element by showing that she was
perceived to be and treated as if she were disabled. Swanson v. Univ. of Cincinnati, 268 F.3d
307, 318 (6th Cir. 2001). Likewise, we review a claim for disparate treatment using this same
framework, except that “the plaintiff can satisfy the fifth element of the prima facie case by
showing that similarly situated non-disabled employees were treated more favorably.”
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Rosebrough, 690 F.3d at 431 n.2 (citing Hopkins v. Elec. Data Sys. Corp., 196 F.3d 655, 660
(6th Cir. 1999)).
The district court initially granted summary judgment for Buckeye Valley on the second
element—finding that Rosebrough was not “otherwise qualified for the position” of bus driver
because she did not have a CDL. After our reversal and remand, Buckeye Valley argued that
Rosebrough had failed to satisfy the first and third elements of her prima facie test—a showing
of disability and of adverse action by the employer. The district court assumed without deciding
that Rosebrough was disabled, but found summary judgment appropriate on the basis that
Rosebrough had not “suffered an adverse employment decision.” Rosebrough, 2013 WL
633867, at **5-6. We agree.
To show an “adverse employment action,” an ADA plaintiff must point to a negatively
impactful employment decision by Buckeye Valley regarding “hiring, advancement, or
discharge[,] . . . compensation, job training, and other terms, conditions, and privileges of
employment,” 42 U.S.C. § 12112(a), or any other “materially adverse change in the terms of [ ]
employment.” White v. Burlington N. & Santa Fe R. Co., 364 F.3d 789, 797 (6th Cir. 2004) (en
banc) (citing Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885 (6th Cir. 1996)). Although
“adverse employment action” thus enjoys a very broad definition, it is not without limits. For
example, “[a] ‘mere inconvenience’ . . . or a ‘bruised ego’ is not enough to constitute an adverse
employment action,” White, 364 F.3d at 797 (quoting Spring v. Sheboygan Area Sch. Dist.,
865 F.2d 883, 886 (7th Cir. 1989)), and a plaintiff does not satisfy this element unless she can
show that her disability (or perceived disability) was the “but-for” cause of the employment
decision. Lewis, 681 F.3d at 318.
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Rosebrough points to several sources of indirect evidence that she claims, taken together,
demonstrate adverse action by Buckeye Valley. Principally, she complains that beginning with
Cope’s initial invitation to apply for the bus driver position, it took seven months for her to
complete her training and qualify for the CDL examination. This length of time—combined
with other characteristics of her training experience—leads Rosebrough to conclude that
Buckeye Valley never really wanted her to obtain the CDL or gain employment as a bus driver in
the first place.
The seven-month delay Rosebrough identifies is, in turn, composed of two distinct sub-
phases. First, there is the four-month period Rosebrough was required to wait before beginning
bus-driver training (a delay occasioned by the Department of Education’s ‘waiver’ requirement
for limbless drivers). Second, Rosebrough objects to the length and conditions of the training
period itself.
Beginning with the pre-training delays, we find no record evidence to support
Rosebrough’s claim of adverse action during this period, that is, evidence that Buckeye Valley
obstructed her efforts to begin bus driver training or obtain a disability waiver from the Ohio
Department of Education. In fact, Rosebrough appears to abandon this argument, stating in her
reply brief: “Appellant’s litigation is about being denied the opportunity to test for her CDL, not
that she was denied becoming a trainee.”
Even if not abandoned, however, the claim fails. The Ohio Department of Education, not
Buckeye Valley, had responsibility for the waiver process, see Ohio Admin. Code 3301-83-07
(2012), and most of the delays Rosebrough experienced were the result of her own actions, such
as seeking a medical opinion from an unauthorized provider and omitting required information
from the waiver form. Although she attempts to blame Cope for these mistakes and omissions,
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Rosebrough’s deposition testimony indicates that Cope played a minimal role in the waiver
process beyond providing the initial forms and directing Rosebrough’s questions to the
Department of Education. Rosebrough also concedes that she did not read the waiver form when
filling it out. As a result, the delay in obtaining a waiver and beginning training cannot be
causally linked to Buckeye Valley and, thus, fails to constitute an adverse employment action
under Lewis’s “but-for” causation standard. 681 F.3d at 318.
Rosebrough directs more attention to Buckeye Valley’s actions during the training
period—actions she claims interfered with her training and prevented her from testing for her
CDL. Here, too, we conclude that Rosebrough has failed to make out a prima facie case of
discrimination, because the record contains no factual basis for an inference that Buckeye Valley
took action to prevent Rosebrough from testing for the CDL. Instead, the record indicates that
after recruiting and training Rosebrough for the position of bus driver, Buckeye Valley was
prepared to reschedule the CDL exam at her convenience and to hire her if she passed. That the
CDL test never occurred is, again, traceable only to Rosebrough’s actions—namely, her decision
not to reschedule the test, despite her trainer’s invitation to do so. As a result, Rosebrough’s
abandonment of the CDL test cannot be attributed to Buckeye Valley and thus does not satisfy
the adverse action element of her prima facie case.
Rosebrough makes several arguments to the contrary, none of which we find persuasive.
First, Rosebrough contends that her training took longer than that of a non-disabled
fellow-trainee, and that this supports an inference of unequal treatment. We do not find that this
raises a triable fact question, however, because this trainee was both an auto-mechanic and an
amateur race-car driver. He therefore had substantially greater driving and automotive
experience than Rosebrough, and comparing his experience to Rosebrough’s would be a case of
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apples to oranges. Moreover, their difference in training time was only modest: Rosebrough’s
training occurred on nine separate dates spread across an eight week period; the mechanic/race
car driver’s training occurred on seven dates over a five week period.
Second, Rosebrough points to various clerical errors contained in her daily training
sheets. She asserts that these errors reveal such sloppiness on the part of her trainers as to
support an inference that they intended for her training to fail. This claim is rebutted, however,
by the fact that she did succeed in completing training and, in fact, was qualified to take the CDL
test. Once training was completed, only one form (known as a T-9 form) was required as proof
of Rosebrough’s qualification to take her CDL exam and, at that point, any error in the daily
training logs became immaterial. Nor is it probative that Rosebrough’s T-9 form remained
partially incomplete at the time she abandoned her efforts to obtain a CDL; Carper testified that
she was in the process of completing the T-9 when Rosebrough demanded that the form—and
her other training materials—be returned to her.
Next, Rosebrough directs us to Presley’s hurtful comments about her missing hand—
comments made during Rosebrough’s February 5 and 9 training sessions—-as evidence of
Buckeye Valley’s hostility towards her. Taking the record in the light most favorable to
Rosebrough, we agree that Presley’s comments showed a lack of sensitivity about Rosebrough’s
disability. We disagree, however, that this raises a triable issue of fact regarding disability
discrimination. Carper, not Presley, was the trainer primarily responsible for Rosebrough’s
training, and Rosebrough does not allege (and the record does not show) that Carper ever made
insensitive comments about Rosebrough’s disability. Furthermore, once Rosebrough completed
her training and received clearance to take the CDL test, whatever ill-will existed between her
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and Presley was of no further relevance to Rosebrough’s ability to obtain the required license
and become a driver.
Finally, Rosebrough argues that Buckeye Valley “told [her] she would be tested when her
trainer knew it was not possible due to the lack of substitute drivers” and that this deception
evidences Buckeye Valley’s intent that the testing never occur. In our view, the record does not
support such an inference. When, on March 14, Carper and Rosebrough scheduled the CDL test,
Carper could not have foreseen what the staffing situation would be a week later, on March 20.
Despite a general shortage of bus drivers within the district (the same shortage that led to
Rosebrough’s recruitment), Carper and Cope had apparently been successful in finding substitute
drivers on short notice in the past, and it is therefore not the case that Carper “knew” that the
March 20 exam date was impossible at the time she scheduled it. Rosebrough also casts blame
on Cope for preventing Carper from “splitting” her route so as to accommodate the exam, but
Rosebrough points to no evidence that anything other than the undisputed driver shortage was to
blame for Cope’s decision. That decision, which prioritized transporting children to school over
accommodating Rosebrough’s exam, strikes us as eminently reasonable. Additionally, it is
undisputed that Carper not only suggested rescheduling the CDL test, but proposed alternative
times when the shortage of bus drivers would not cause interference, such as on a weekend or
afternoon. Far from betraying the intention of thwarting Rosebrough’s CDL test, Carper’s
suggestions indicate a desire to see the test occur promptly.
In short, the record contains no facts suggesting an effort by Buckeye Valley to obstruct
Rosebrough from taking her CDL exam or becoming a bus driver. On the contrary, it shows that
Buckeye Valley was ready and willing to assist her in taking the exam, if only she had
rescheduled for a time when spare drivers and buses were available. Rosebrough has thus failed
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to show that Buckeye Valley took an adverse action against her, a shortcoming that is fatal to
each of her ADA claims, as well as her corresponding claims under the Ohio Revised Code.
CONCLUSION
For the reasons set out above, the judgment of the district court is AFFIRMED.
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