NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0716n.06 No. 13-5055 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J OHN D. T URNER, Plaintiff-Appellant,

v. CI TY OF PARI S, KY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COU RT FOR THE EASTERN DI STRI CT OF KE NTUCKY

Be fore : BA TCHEL DER, Chief J udg e; COOK, Circuit J udg e; O’MAL L EY, Circuit J udg e. *
COOK, Circuit J udg e. Plaintiff-Appellant J ohn Turner appea ls the district court’s g rant of summary judgme nt t o d ef en d ant, City of Paris, Kentucky (the “City ”), dismiss ing his Americ ans with Disabilities Act-ba sed claim (“A DA”)

. 42 U.S.C. § 12101 et seq . Turner asser ts that the City should have off

ere d him permane nt employ ment at its recy cling plant afte r a back injury rende red him unable to perf

orm his duties at the City ’s waste water trea tment fac ility . We AFF I RM.

I

.
Turner beg an worki n g at t h e City ’s wastew ater trea tment plant in September 2006 as a collections opera tor. I n Ap ri l 2010, Turner injured his back while installing a section of pipe,
The Honor able Ka

thleen M. O’Ma lley , Circuit J udg e for the United States Court of * Appea ls for the F eder al Circuit, sitti ng by desig nation.No. 13-5055

Turner v. City of Paris leaving him unable to l i ft m o re than 20 pounds occa sionally or 10 pounds fre quently

. The Ci ty ’s worke rs’ compensa tion insurance cover ed Turner ’s medical trea tment. After taking some time off to heal, Turner resumed working by the end of the month. Turner eventua lly rec overe d to the point of being able to lift 30 pounds occa sionally and 10 pound s fr eq u en t l y (30/10 lifting restrictions). Acc ounting for Turner ’s phy sical limit ations, the City temporar ily a s s ig n e d h im to “lig ht duty ” work, first at the wastew ater plant and then in the City ’s rec y cling cente r. Turner understood this to be a temporar y arr ang ement, as he put it, “[un] til further notice.” Around the same time, two other City employ ees

— Ge org e Wheeler and David Caswell—beg an working in the rec y cling cente r due to work-r elated injuries. Wheeler beg an his four- m o n t h s t i n t at the rec y cling cente r in 2010, while

rec overing from a back injury

. C as we l l ’s i n jury occur

red in late Decembe r 2010, consistent with Wheeler’ s rec ollection that Caswell started w orking at the re cy cling cente r af ter Tur ner.
E mp lo y e e s ’ r esponsibiliti es at the rec y cling cente r fit into three g ener al cate g ories: rec eiving , sorting, and baling rec y clables broug ht into the plant from sever al source s. The rec eiving d u ties entail unloading herbie s (rolling trash cans) twice a day , three day s per wee k. Unloading the herbie s require s lifting them over a “pre tty g ood siz e lip” onto the loading dock an d , once loaded,

maneuve ring them around the rec y cling plant. Thoug h g ener ally considere d “lig ht” work, the full herbie s’ weig ht exceed Turner ’s restric tions, and he often enlisted others to lift the herbie s onto the dock for him. Gar

y Ba rb ee , t h e rec y cling cente r supervisor, further observe d: “the herbie s wer e fre quently heavy and, in order to move one, a worker would have to tilt it back, pull it to wher e it neede d to be and then l ift it back up to an upright posi tion.” The rece iving function als o calls for - 2 -No. 13-5055

Turner v. City of Paris

acc epting rec y cling deliverie s directly from the City ’s re sidents. T he residential deliverie s, which

come into the fac ility daily , require worke rs to lift and unload rec y cling bag s weig hing betwee n 30 to 50 pounds.
Severa l City employ ees testified that running the plant is g ener ally a two-per son job. Turner

s u gges t s, howeve r, that the rec y cling cente r supplies work for three full-time worke rs, though h e mentions he “wa s fre quently the only employ ee w orking at the re cy cle c enter .”
Severa l months afte r his rea ssignment, Turner ’s wife suffe red a head injury , prompting him to take time off under

the Fa mily and Medic al L eave Act (“ FML A”) . By October 2010, Turner ’s trea ting phy sician, Dr. Thomas Menke, conclude d that Turner ’s improvement rea ched a plateau, and

rec ommended perma

nent 30/10 lifting restric tions. After lear ning that Turner ’s restric tions beca me perma nent, the City

shifted its focus fr om temporary to permane nt acc ommodation.
As a follow-up to Menke’ s rec ommendation, the City reque sted Turner consult a s econd phy sician, Dr. J ames Fe rre ll, to g aug e his rec overy and evalua te future acc ommodations. Although Fe rre ll orig inally sug g ested that weig ht loss could improve Turner ’s condition, he later clar ified that “[w]eight loss will not chang e the damag e” but would “re duce the risk of further damag e.” Ultimately , Fe rre ll ag ree d with Menke’s r ecommende d perma nent re strictions. Reviewing the doctors’ assessments, the City conclude d that Turner could not pe rfor m the essential functions of his former position at the wastew ater trea tment plant. Concluding that Turner
- 3 -No. 13-5055

Turner v. City of Paris
lack ed t he nece ssary qualifica tions for any available vaca ncy , the City fired him in Marc h 2011. Following an unsucce ssful appea l, Turner sued the City for ADA violatio n s , ad d ing FML Areta liation, and worke rs’ compensa tion reta li a ti o n c h a r g e s u n d e r th e K e n tu c k

y Civil Rights Act, KRS § 342.197. Moving f

or summary

judgme nt, the City arg ued that (1) Turner could not perfor m the essential functions of his job with or without a rea sonable acc ommodation, ( 2) he was unqualified for the availabl e vaca

ncies, and (3) the City made g ood-fa ith eff orts to identify a rea sonable

acc ommodation for Turner ’s perma ne nt lifting restric tions. Refuting Turner ’s reta liation claims, the City pointed to the lack of evidenc e linking Turner ’s dischar g e with his me dical leave or worke rs’ compensa tion claim. Turner timely appea ls the district court’s AD A d ec i s i o n , but abandons his reta liation claims on appea l. See Uni ted States v. Johnson , 440 F.3d 832, 845-46 (6th Cir. 2006) (“A n appel l an t ab andons all issues not raised and arg ued in its initial brief on appea l.”) (interna l quotation marks omitted).

I I

. A. Standard of

Review

We revie w de novo the district court’s summary judgme nt g rant, Kalich v. AT& T Mobility, L.L.C

. , 679 F.3d 464, 469 (6th Cir. 2012), aff irming if, viewing the rec ord in the light most favor able to the nonmoving pa

rty , there rema in no ge nuine disputes of mater ial fac t and the moving party is entitled to judgme nt as a matter of law, Fe d. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). - 4 -No. 13-5055

Turner v. City of Paris
B. Tur ner’ s ADA Claim
The ADA bars employ ers from discriminating ag ainst a “qualifie d individual on the basis of disability .” 42 U.S.C. § 12112(a)

. The KCRA deploy s a substantially simil ar standard and does not need a separ ate analy sis. See Bryson v. Regis Corp ., 498 F.3d 561, 574 (6th Cir. 2007). The plaintiff shoulders the initial burden of showing that he is disabled and “other wise qualified” for the position, either without acc omm o d at i on from the employ er, with an alleg ed essential job require ment eliminated, or with a proposed rea sonable acc ommodation. Kleiber v. Honda of Am. Mfg., Inc. , 485 F.3d 862, 869 (6th Cir. 2007). Once the plaintiff establishes a prima fac ie case , the burden shifts to the employ er to show that t h e “c h alleng ed job criter ion is essential” or that the “propose d

acc ommodation will i mpose an undue hardship upon the employ er.” Id . (interna l quotation marks omitted). The City conce des that Turner fits the ADA’ s “d i sability ” definition, but never theless arg ues that it could not rea sonably acc ommodate him beca

use he was not qualified for any vaca nt position. I n response , Turner arg ues that, had the City taken up his reque st for a ramp, which Turner considers a rea sonable accommodation, he would have been qualified for a perma nent pos ition at the rec y cling cente r. Finally , Turner qu es t i o n s the City ’s eng ag ement in the ADA’ s interac tive proce ss. Be cause we ag ree with the district court’s finding that the rec y cling cente r had no
vaca ncies, we need not decide whether Turner possessed the nece ssary qualifica tions for a position there

.

- 5 -No. 13-5055

Turner v. City of Paris 1. The City ’s Vac ant Positi ons
Whil e the ADA mandates “re asonable acc ommodations,” such as a transfe r, for an employ ee’ s disability , an employ er need not displace another employ ee, waive essential jo b require ments, or cre ate a new position to make room for a disabl ed wo rk er . B u rns v. Coca-Cola Enters., Inc. , 222 F.3d 247, 257 (6th Cir. 2000). I ndeed, the stat ute specific ally uses the words “re assig nment to a vacant position.” 42 U.S.C. § 12111(9)( B) (empha sis added)

. As the district court corr ectly n o te d , th e Ci ty la cked such a vaca ncy . Turner ’s comeba ck—that two rec y cling -ce nter employ ees retire d around the time of his injury and rea ssignment, and the City should have enlisted him for these vaca

nt positions—m isses the mark. For one, Turner points to vag ue, secondha nd testimony to support the exis tence of these opening s. I n fac t, the only retire e he could identify was J ohn Sievers, and even then Turner could not pinpoint when Sievers retire d. City rec ords clar ified this point, confirming that Sievers took me dical leave in N ovember 2010, but did not retire until a month after T urner ’s Marc h 2011 discharg e. To prove the s econd alleg ed vacanc y , Turner turned to Wheeler’ s testimony , which identified “Alber t” Tay lor (whose name actua lly is Alvin Tay lor) as the second retiring employ ee. But Wheeler could only g uess that Tay lor retire d around 2009 or 2010. Wheeler’ s testimony reg arding the timing of Tay lor’s depar ture, howeve r, conflicts with the

rec ord, which shows tha t Tay lor retire d in Dece mber 2005.

Turner now admits that Sievers “did not formally retire until April of 2010.” (Appe llant Br

. at 21.) Neve rtheless, he presse s that the City knew Sievers’ position would “bec ome vacant i n a
- 6 -No. 13-5055

Turner v. City of Paris
short period of time.” (

Id

. (quoting Monette v. Elec. Data Sys. Corp ., 90 F.3d 1173, 1187 (6th Cir. 1996)).) Def

ining “a short period of time” natura lly follows. I n Monette v. Electronic Data Systems Corp ., this court sug g ested that a one-w eek period suffice s, but emphasized that employ ers are not require d to ke ep a disabled e mploy ee “ in the hope that some position ma y become available some time in the f

uture.” 90 F.3d a t 1187. Turner offe rs no evidenc e, no concr ete time line, sug g esting the City knew Sievers’ position would become available within a “short period of time,” such as a
wee k. Taking some liberties with the rec ord, Turner cites Wheeler’ s deposition for the proposition that “it was we ll known Sievers was not re turning to work.” But nothing in Wheeler’s de position supports this conclusion; all that this testimony sug g ests is that Sievers wo rked at the cente r and retire d due to health rea sons. On the key issue, Wheeler rema ined ag nostic. Thus, the rec ord y ields

no questions of fac t on the subject of available vaca ncies, and the City bear s no liability as a matter of law. 2. Eng ag ement in I ntera ctive Proce ss
Turner faults the City for alleg edly failing to “ade quately eng ag e in the interac tive proce ss,:
ar gu i n g that the City “fa il[ ed] to make a rea sonable inquiry into Turner ’s ability to continue h i s
em p l o y ment at the rec y cle cente r,” and failed to rea sonably consider his loading -ramp
acc ommodation. Turner ’s appar ent dissatisfaction with the City ’s proce dures discounts the fac t that it hired Fe rre ll for the sole purpose of evalua ting Turner ’s re s t ri ct ions. Moreove r, the City sent Fe rre ll a follow-up letter to deter mine if weig ht loss could improve Turner ’s condition. This inquiry

- 7 -No. 13-5055

Turner v. City of Paris

came on the heels of a leng thy interac t i v e p ro cess; Turner first took sever al wee ks off work to

rec over, returne d to lig ht duty work for six months during reha bilitation, and continued light work for sever al months afte r Menke made the restric tions perma nent. Thoug h Turner maintains that the City should have commissioned Fe rre ll to evalua te hi s phy sical fitness for the rec y cl i n g post, this claim, too, fails beca

use it incorre ctly assumes the cente r had a perma nent vaca ncy . Be cause Turner fails to point to any evidenc e to sug g est that the City ’s bad faith cause d a brea kdown of the ADA’ s interac tive proce ss, Kleiber , 485 F.3d a t 871-72, we r ejec t Turner ’s final c halleng e.
I I I

.
We AFF I RM the district court’s g rant of summar y judgme nt.

- 8 -