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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0576n.06

No. 14-4145

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MICHAEL ARTHUR,

Plaintiff-Appellant,

v.

AMERICAN SHOWA, INC.,

Defendant-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE SOUTHERN 

DISTRICT OF OHIO 

BEFORE: GIBBONS and COOK, Circuit Judges; MURPHY, District Judge.*

JULIA SMITH GIBBONS, Circuit Judge. Plaintiff Michael Arthur appeals the district 

court’s grant of summary judgment in favor of his former employer, American Showa, Inc., on 

his claims brought under the Americans with Disabilities Act as amended (ADA) and Ohio law 

for failure to accommodate his disability and discriminatory discharge. Because Arthur cannot 

establish the prima facie case for either claim, we affirm the district court’s decision.

I.

Arthur began working as a full-time production associate for American Showa, Inc.

(“ASI”) in March of 1999. Prior to his employment at ASI, Arthur was diagnosed with spina 

bifida occulta. According to the Mayo Clinic, spina bifida occulta is a birth defect that causes 

malformation of the spinal cord. 

 

* The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern 

District of Michigan, sitting by designation.
No. 14-4145, Arthur v. American Showa, Inc.

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In early 2002, Arthur had surgery to fuse some of his spinal discs. Despite his surgery, 

he continued to have back problems and in 2003 he requested time off under the Family and 

Medical Leave Act. In 2004, Arthur requested that ASI accommodate his condition by 

reassigning him to a job that did not require bending or twisting. ASI sent Arthur to have an 

Independent Medical Examination (IME) performed by Dr. David Randolph. Dr. Randolph 

found that “it is unlikely that Mr. Arthur will ever be free of problems with his low [sic] 

back . . . [He] will likely have chronic low back pain and require chronic and permanent 

restrictions with respect to work activities. . . . It is highly unlikely that he will ever be able to 

return to unrestricted work activities.” Dr. Randolph recommended a 20-pound lifting restriction 

and stated that bending, twisting and stooping should be limited to an occasional and nonrepetitive basis. 

To accommodate the restrictions imposed by Dr. Randolph, ASI reassigned Arthur to a 

calibration associate position in the quality department. Arthur worked in this position until 

2011. Arthur does not allege that ASI discriminated against him or failed to accommodate him 

prior to his termination in 2011. 

In January of 2009, due to an economic downturn, ASI embarked on a reduction in its 

workforce. From 2009 to 2011, ASI released 100 temporary employees and over 50 full-time 

employees. In late 2011, department managers were informed that due to budgeting constraints 

additional positions would have to be eliminated. Greg Harvey, Arthur’s manager, used a matrix 

of objective criteria to determine who would be eliminated. Because Arthur was the least senior 

in the department and could be released with the least amount of disruption, Harvey ultimately 

selected Arthur for layoff. 
No. 14-4145, Arthur v. American Showa, Inc.

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On December 2, 2011, Arthur was informed of his termination pursuant to the reduction 

in force. Following Arthur’s termination, Harvey learned of another employee who was laid off 

but was offered a manufacturing position because he used to work on the manufacturing floor. 

Since Arthur had also previously worked on the manufacturing floor, Harvey thought that, in the 

interests of fairness and consistency, Arthur should be presented with the same offer. 

On December 5, 2011, Ginny Whiting, ASI’s HR manager at the Blanchester plant, 

called Arthur to ask if he would be interested in a machining position on the rack line. Arthur 

asked Whiting why he could not bump one of the assembly associates who recently moved to 

machining and Whiting said it was not allowed. According to Whiting’s notes taken during the 

conversation, Whiting then asked Arthur if he would be able to take a machining position with or 

without accommodation, to which Arthur responded “maybe.” The notes also suggest that 

Arthur stated that his physician made his restrictions more restrictive. The conversation ended 

with Arthur saying he would think about the machining position. On December 8 and 9, Whiting 

called Arthur to follow up on his decision regarding the machining position and left voicemail 

messages on Arthur’s cellphone. On December 9, Arthur met with Whiting at ASI and informed 

her that he decided not to accept the machining position. Following that meeting, Whiting sent 

Arthur a letter detailing the timeline of their discussions and reiterating that his job at ASI ended 

on December 2, 2011. 

Arthur filed a charge of disability discrimination with the EEOC in July 2012. Following 

receipt of his right-to-sue notice, Arthur filed his complaint against ASI in the district court. He 

alleged that ASI violated the ADA and Ohio law by refusing to accommodate him and 

terminating him on account of his disability. ASI filed a motion for summary judgment and the 

district court granted that motion. Arthur’s timely appeal followed. 
No. 14-4145, Arthur v. American Showa, Inc.

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II.

We review de novo a district court’s grant of summary judgment. Cehrs v. Ne. Ohio 

Alzheimer’s Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998). Summary judgment is proper if 

there is no genuine issue of material fact and the moving party is entitled to judgment as a matter 

of law. Id. We view the facts, and the reasonable inferences to be drawn from those facts, in the 

light most favorable to the non-moving party, and we do not weigh the evidence or make 

credibility determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Keith v. 

Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir. 2013).

The ADA makes it unlawful for an employer to “discriminate against a qualified 

individual on the basis of disability.” 42 U.S.C. § 12112(a). Arthur claims that ASI 

discriminated against him by failing to provide a reasonable accommodation to allow him to 

continue working in a new position after his layoff and by terminating his employment. 

A.

Arthur’s claim of discriminatory discharge in violation of the ADA and Ohio law lacks 

sufficient evidentiary support to survive summary judgment.1In the absence of direct evidence 

of discrimination, courts analyze ADA discrimination claims following the familiar burdenshifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Whitfield v. 

Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). To prove a prima facie case of disability 

discrimination, Arthur must show that (1) he is disabled; (2) he is otherwise qualified for the 

position with or without reasonable accommodation; (3) he suffered an adverse employment 

decision; (4) ASI knew or had reason to know of his disability; and (5) Arthur was replaced or 

his position remained open. Id. Under the ADA, the plaintiff’s disability must be a “but for” 

 

1 As the elements of a disability claim are essentially the same under the ADA and the Ohio statute, we will 

address them together. Brenneman v. MedCentral Health Sys., 366 F.3d 412, 418 (6th Cir. 2004). 
No. 14-4145, Arthur v. American Showa, Inc.

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cause of the adverse employment action. Demyanovich v. Cadon Plating & Coatings, L.L.C.,

747 F.3d 419, 433 (6th Cir. 2014). 

The prima facie framework is modified if an employee is discharged due to a reduction in 

force. In such a case, the plaintiff is not required to demonstrate the fifth prong of the prima 

facie framework because he is not replaced. See Godfredson v. Hess & Clark, Inc., 173 F.3d 

365, 371 (6th Cir. 1999). Instead, the plaintiff must introduce “additional direct, circumstantial,

or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge 

for impermissible reasons.” Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990), cert. 

denied, 498 U.S. 878 (1990); see also Skalka v. Fernald Envtl. Restoration Mgmt. Corp., 178 

F.3d 414, 420–21 (6th Cir. 1999). 

ASI acknowledges that Arthur satisfies the second and third elements of his prima facie 

case. However, ASI argues that (1) Arthur does not meet the statute’s meaning of disabled; (2) 

Harvey—the sole decisionmaker concerning Arthur’s termination—was unaware of Arthur’s 

alleged disability; and (3) Arthur cannot establish that ASI replaced him or held his position 

open. 

Due to his spina bifida occulta, Arthur has had multiple surgeries. The collective impact 

of these surgeries has left Arthur substantially limited in several major life activities, including 

bending and lifting. See 42 U.S.C. § 12102(2)(A). These restrictions were not of a temporary 

nature, but were found by Dr. Randolph to be chronic and permanent. Thus, echoing the district 

court, we analyze Arthur’s prima facie case under the assumption that Arthur is disabled within 

the meaning of the ADA. 

Nevertheless, Arthur’s prima facie case fails at the fourth step. While it is clear that ASI 

knew of Arthur’s restrictions, and therefore his disability, “an employee cannot be considered to 
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have been fired ‘on the basis of disability’ unless the individual decision-maker who fired the 

individual had knowledge of that disability.” Nilles v. Givaudan Flavors Corp., 521 F. App’x 

364, 368 (6th Cir. 2013) (collecting cases). In this case, because it is undisputed that Harvey was 

the sole decisionmaker regarding the reduction-in-force job eliminations within his department,

the prima facie case requires that Harvey knew of Arthur’s disability. Harvey, although aware 

that Arthur had “restrictions,” was wholly unaware of the specifics of his restrictions or why 

these restrictions were imposed. 

Arthur does not dispute that Harvey was ignorant of Arthur’s disability. Rather, Arthur

counters that his employment did not end until December 9, 2011, when the final termination 

letter was written by Whiting. Therefore, Arthur argues, it was Whiting and not Harvey who 

fired him, and Whiting knew that he was disabled prior terminating him. 

This argument is unavailing. Arthur was unambiguously terminated on December 2, 

2011. The relevant letter states “I regret to inform you that effective today, 12/02/2011, your 

position is being eliminated in accordance with American Showa, Inc.’s reduction in force 

process.” (DE 20-1, Letter, Page ID 122.) Arthur’s termination was not revoked merely because 

Whiting asked Arthur whether he would be interested in a machining position three days later. 

Indeed, as evidenced by the letter detailing the back-and-forth discussion between Whiting and 

Arthur, Arthur declined the machining area position. “Per [this] decision, [Arthur’s] 

employment with [ASI] is ending effective 12/02/2011 due to job elimination as part of 

American Showa’s reduction in force process.” (Id.) 

Despite Arthur’s attempt to characterize the December 9, 2011 letter as the final 

termination letter, the evidence demonstrates that Arthur was terminated on December 2, 2011. 

The decision to terminate Arthur was made by Harvey, who undisputedly knew nothing about 
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Arthur’s disability. Therefore, Arthur is unable to establish the fourth element of his prima facie 

case. 

Arthur further argues that ASI’s failure to transfer him in accordance with ASI policies 

before he was notified of his layoff on December 2, 2011, serves as circumstantial evidence of 

discrimination, fulfilling the fifth prong of the prima facie framework. Specifically, Arthur 

maintains that it is ASI’s policy to offer hourly employees a position of a similar nature and pay 

before notifying them of a layoff. Indeed, LoAnn Burt, the top human resources official for the 

relevant factories did state that it was “typical” for the company to do so. While a deviation 

from, or selective enforcement of, a policy could serve as circumstantial evidence of 

discrimination, see e.g., Wells v. New Cherokee Corp., 58 F.3d 233, 236–37 (6th Cir. 1995), it is 

not necessary to determine whether or not ASI’s failure to transfer Arthur prior to his layoff 

amounted to circumstantial evidence of discrimination in the present case. As discussed above, 

Arthur is unable to prove that Harvey—the final decisionmaker in Arthur’s termination—knew 

of Arthur’s disability and is therefore unable to establish the prima facie case.

2

Arthur additionally contends that the district court erred by finding that he failed to 

request a reasonable accommodation. Thus, the issues raised on appeal are whether Arthur 

requested a reasonable accommodation, and if so, whether ASI failed to engage in the interactive 

process.3

 

2 Because we believe that Arthur is unable to meet his burden under the prima facie framework, we find it 

unnecessary to address Arthur’s allegations of pretext due to ASI’s alleged lack of an apparent objective reductionin-force plan. 

3

ASI briefly argues that it had no duty under the ADA to accommodate Arthur since Arthur was 

technically no longer an employee of ASI. ASI cites to no legal authority to support this position and the Court can 

find none. On the contrary, the Supreme Court has determined that an employer’s failure to rehire is potentially

actionable under the ADA. See Raytheon Co. v. Hernandez, 540 U.S. 44, 48–52 (2003). 
No. 14-4145, Arthur v. American Showa, Inc.

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i.

To succeed on his failure-to-accommodate claim Arthur must show: (1) he is disabled; 

(2) he is otherwise qualified for the position, with or without reasonable accommodation; (3) ASI 

knew or had reason to know of his disability; (4) he requested an accommodation; and (5) the 

employer failed to provide the necessary accommodation. Judge v. Landscape Forms, Inc., 

592 F. App’x 403, 407 (6th Cir. 2014).

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While the ADA requires employers to reasonably accommodate their disabled 

employees, “it does not endow all disabled persons with a job . . . of their choosing.” EEOC v. 

Ford Motor Co., 782 F.3d 753, 757 (6th Cir. 2015) (en banc). The plaintiff bears the “burden of 

proposing an accommodation and showing that that accommodation is objectively reasonable.” 

Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996), abrogated on other 

grounds by Lewis v. Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012) (en banc). 

Reasonable accommodations do not obligate employers to create new jobs or displace existing 

employees from their positions. Thompson v. E.I. DuPont deNemours & Co., 70 F. App’x. 332, 

336 (6th Cir. 2003). In this case, Arthur believes it would have been reasonable under the 

circumstances for him to trade positions with another employee because ASI retained the right to 

transfer employees at will. Though a transfer or reassignment to another position is recognized 

as one type of reasonable accommodation, the ADA does not refer to merely any position, but “a 

vacant position.” 42 U.S.C. § 12111(9)(B) (emphasis added). Here, none of the positions 

amenable to Arthur’s restrictions were vacant at the time he was offered a position. 

 

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As already discussed, for the purposes of summary judgment Arthur has demonstrated that he has a 

disability. Moreover, ASI does not dispute the second or third element. Thus the analysis will focus on whether he 

requested a reasonable accommodation.
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To circumvent this hurdle, Arthur argues that the facts of this case present those “special 

circumstances” referred to in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 405 (2002). In 

Barnett, a U.S. Airways baggage handler injured his back and requested transfer to a mailroom 

position that recently had become available. Id. at 394. US Airways denied his request because, 

under its seniority policy, the company was required to award the position to a more senior 

employee. Id. at 395. The Supreme Court found that, despite the seniority system, a plaintiff 

may show that “special circumstances warrant a finding that . . . the requested ‘accommodation’ 

is ‘reasonable’ on the particular facts.” Id. at 405. For example, a plaintiff may show that the 

employer frequently exercises its right to change the seniority system unilaterally. Id.

In this case, Arthur views the special circumstances as follows: (1) on December 5, 2011, 

ASI transferred over 50 production associates to machining positions at Arthur’s plant after 

shutting down one of the production assembly lines; and (2) on that very same day Whiting 

offered Arthur a position on the rack line. Arthur contends that because these 50-plus employees 

all received “new jobs,” Arthur’s reassignment to a position within his restrictions would not 

have resulted in the termination, removal or displacement of any employee. Therefore, it would 

not have placed an undue hardship on ASI. 

Barnett, however, is ill-suited to the present case. Though the Sixth Circuit has yet to 

expound upon the Supreme Court’s discussion of “special circumstances,” one thing is clear: 

Barnett dealt with the interaction of employers’ seniority systems and the ADA in the context of 

vacant positions. See id. Here, it is undisputed that the positions Arthur desired were already 

occupied. At the time Arthur spoke with Whiting on December 5, 2011 about his job offer for a 

position on the rack line, most if not all of the other positions in machining were already filled by 

the transferred associates. Arthur even acknowledged in his deposition that in order to be placed 
No. 14-4145, Arthur v. American Showa, Inc.

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in one of the jobs he could do—ranking room, forklift and analysis associates—an employee 

would have to be transferred to another position. 

The ADA “does not require an employer to reassign an employee to a position that is not 

vacant.” Smith v. Ameritech, 129 F.3d 857, 867 (6th Cir. 1997). This is logical; disparities in 

performance between employees and the time lost amidst retraining make obligating an 

employer to trade employees’ positions an unreasonable accommodation. Arthur has failed to 

demonstrate that any positions within his restrictions were vacant. Indeed, the record evidence 

indicates that there were no positions available that could accommodate his disability. Thus, 

Arthur’s requested accommodation was objectively unreasonable. 

Arthur further contends that the district court incorrectly refused to consider a portion of 

Arthur’s declaration. In his declaration filed in opposition to ASI’s motion for summary 

judgment, Arthur contends that during the conversation that took place on December 5th, 

Whiting told Arthur that he “would have to give up [his] restrictions.” (DE 27-1, Arthur Decl., 

Page ID 335.) The district court declined to consider this statement because the court determined 

it an attempt to bolster Arthur’s deposition testimony. While the district court’s decision was in 

error, it does not change the ultimate outcome of the case. 

“A party may not create a factual issue by filing an affidavit, after a motion for summary 

judgment has been made, which contradicts [his] earlier deposition testimony.” Reid v. Sears,

Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986); see also Fair v. Prime Sec. Distrib., Inc., 

134 F.3d 371, *2 (6th Cir. 1997) (per curiam) unpublished table decision) (“[W]e do not allow 

parties who have been deposed to create material fact issues simply by submitting later 

contradictory affidavits[.]”). Although Arthur’s deposition testimony never mentioned 

Whiting’s alleged statement that he would have to give up his restrictions, Arthur was never 
No. 14-4145, Arthur v. American Showa, Inc.

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asked to explain what was said in the December 5 conversation. Even Whiting’s testimony does 

not contradict Arthur’s affidavit. Whiting acknowledged that the contents of her note regarding 

her December 5 conversation with Arthur would not include “everything that could have been 

said that day.” (DE 20, Whiting Dep., Page ID 88.) 

In any event, even assuming that Whiting told Arthur that the rack line was the only job 

available and he would need to waive his restrictions to work it, Arthur’s failure-toaccommodate claim still fails. Such a fact only bolsters ASI’s position that there were no vacant 

jobs available that could accommodate Arthur’s restrictions. It also reinforces ASI’s argument 

that Arthur wanted the opportunity to replace, or “bump,” an existing employee and reassign said 

employee to a different position.

ii.

Arthur also argues that ASI failed to engage in the interactive process in good faith in 

violation of the ADA. Arthur seeks to gloss over his own responsibility to request a reasonable 

accommodation. He places the burden on ASI to engage in the interactive process because 

Whiting knew of Arthur’s restrictions. However, Arthur never triggered such duty because of 

his failure to request a reasonable accommodation in the first place.

The ADA’s regulations indicate that, “[t]o determine the appropriate reasonable 

accommodation [for a given employee,] it may be necessary for the [employer] to initiate an 

informal, interactive process with the [employee].” 29 C.F.R. § 1630.2(o)(3). The purpose of 

the interactive process is to “identify the precise limitations resulting from the [employee’s] 

disability and potential reasonable accommodations that could overcome those limitations.” Id. 

However, if the employee never requests a reasonable accommodation the employer’s duty to 

engage in the interactive process is never triggered. See Lockard v. Gen. Motors Corp., 52 F. 
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App’x 782, 788 (6th Cir. 2002). Indeed, a court need not consider whether there has been a 

failure to engage in the interactive process when a plaintiff fails to meet his burden of showing

that a position to accommodate him was vacant. See Kleiber v. Honda of Am. Mfg., Inc., 420 F. 

Supp. 2d 809, 826 (S.D. Ohio 2006), aff’d, 485 F.3d 862 (6th Cir. 2007); see also Ozlowski v. 

Henderson, 237 F.3d 837, 840 (7th Cir. 2001). As already discussed, Arthur’s requested 

accommodation was unreasonable because the positions he could perform were occupied, thus 

ASI’s duty never arose. 

Even assuming ASI’s duty to engage in the interactive process was triggered, Arthur’s 

claim still fails. “[T]he employer fails to participate in the interactive process only if, among 

other things, the employee can demonstrate that ‘the employee could have been reasonably 

accommodated but for the employer’s lack of good faith.’” Breitfelder v. Leis, 151 F. App’x 

379, 386 (6th Cir. 2005) (quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 320 (3d Cir.

1999)). Arthur has failed to sufficiently present another way ASI could have reasonably 

accommodated him. Moreover, once ASI indicated to Arthur that his requested accommodation 

would result in the bumping of other employees, i.e. undue hardship, ASI is not further “required 

to propose a counter accommodation in order to participate in the interactive process in good 

faith.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010). 

III.

For the foregoing reasons, we affirm the district court’s decision.