NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0509n.06
Case No. 16-6675
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JOSEPH TERRE, Plaintiff-Appellant,

v. DORSEY HOPSON, II, et al., Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: SILER, CLAY, and WHITE, Circuit Judges. SILER , Circuit Judge. Joseph Terre, Jr., f iled this action alleging claims of discrimination under the Americans with Disab ilities Act (as amended), 42 U.S.C. § 12101 et seq. (“ADA”) and the Age Discrimination in Empl oyment Act, 29 U.S.C. § 623 (“ADEA”). The district court granted summary judgment in favor of Defendant s, Shelby County Schools Unified School District (“SCS”) and supe rintendent Dorsey Hopson. Terre appeals that ruling, arguing that he has exhausted his administrative remedies and properly set forth a prima facie case and evidence of pretext under both the ADA and ADEA. For the following reasons, we affirm the district court’s ruling regarding Terre’s ADEA claim and reverse and remand to the district court Terre’s ADA accommodation and disp arate treatment claims.Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 2 - FACTUAL AND PROCEDUR AL BACKGROUND In October 2012, after having taught for many years at various locations, Terre was appointed as the economics teacher at W ooddale High School (“Wooddale”). He became certified to teach economics in or about Februa ry 2013, in addition to already being certified in English and history. Terre was a Career Leve l III and Professional Level teacher and was regarded as highly qualified in se veral subjects at the high-school level. He was not evaluated at Wooddale from 2010 to 2013, but he was evalua ted in 2001 and 2005. He never received an unsatisfactory evaluation, nor did he incur form al discipline, throughout his teaching career. In August 2013, at the beginning of the 2013- 2014 school year, Terre maintained his full-time position as an economics teacher at Wooddale. His position consis ted of teaching five economics classes and one sociology class per se mester. On October 25, 2013, Terre went on approved Family Medical and Leave Act (“FMLA”) leave. He asked for se veral extensions of this leave, and each extension was allowed fo llowing certification from Terre’s health care provider. In April 2014, Wooddale Principal Michael Ky le informed Terre that seven teachers would be excessed and that Terre ’s full-time economics position w ould be one of the positions excessed. Terre was seventy-one years old at that time. In his email to Terre, Kyle stated that “Quinn is taking the Economics Praxis in June and will hopefully pass it. If he doesn’t, then I’ll go back to square one.” 1 Kyle stated that the excessi ng was due to budget cuts resulting from projected enrollments for the next year. Wooddale teachers in positions that were excessed received notice from the Human Resour ces Department, advising that if non-tenured

1 Ryan Quinn, another teacher at Wooddale, was born in 1989, and he signed an employment contract with SCS on December 20, 2013. He was initially only certified to teach history, and he held an Apprentice Level Teacher’s License while he was at Wooddale.Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 3 - teachers did not find a new position before June 15, their contract would be terminated; Terre received this notice in May 2014. In June, despite Terre’s complaints that he could not be terminated while on medical leave, he received a non-renewal notice from Hopson, informing Terre that his contract was to be terminated effective June 30, 2014. However, afte r Terre’s continued complaints to the Human Resources Department and the La bor Relations Department that his rights under the ADA were being violated by excessing his position while he was on medical leave, Terre was informed that his contract would not be term inated and that he would be allowed to find another position within the school system following his leave. Te rre was to be considered an active employee on leave until such time. 2 In August, after having been advised that he was not terminated, Terre filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) based on disability and age discrimination. September, Terre submitted documentation from his health care provider that he could return to work a nd a “Reinstatement Form,” which Human Resources had informed Terre he needed to submit to appr ove his return to work and be referred to the Strategic Teacher Recruitment a nd Staffing office regarding placem ent. Terre was officially cleared to return to work in October. During the 2014-15 school year, due to Quinn’ s initial failure to pass the Praxis economics exam, economics courses at Wooddale were spread out among three existing teachers who also taught other subjects. teacher at Wooddale was certified to teach economics until Quinn passed the Praxis in October a nd earned certification in February 2015.

2 At this point, Terre’s leave was set to expire in August 2014, although his leave was later extended until October 2014.Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 4 - During this time period, the Human Resources De partment assisted Terre in trying to find another position. 3 SCS has the power and authority to rea ssign a teacher to another position at a different school operated by SCS, and in Decembe r, Terre received an offer for a teaching position at Manassas High School. He declined th e position because he di d not believe it would be a permanent position and because he believed that his requests for various accommodations would not be honored. In February 2015, Terre request ed a Right to Sue letter fr om the EEOC, and the EEOC issued a Notice of the Right to Sue letter in June. Terre then filed this lawsuit, and the district court granted summary judgment for the Defendants in October 2016. ANALYSIS
I. Standard of Review We “review a [district court’s] grant of summary judgment de novo, construing the evidence and drawing all reas onable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp., Inc. , 656 F.3d 359, 362 (6th Cir. 2011).
II. ADEA Claim The ADEA states that “[i]t shall be unlawful fo r an employer-- . . . to fail or refuse to hire or to discharge any individual or otherwise discri minate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff may bring an age discrimination claim by either showing direct evidence of discrimination or thr ough the use of circumstantial evidence. See Martin v.

3 The parties dispute the level of assistance provided by Defendants to Terre and whether Defendants made a good faith effort to assist Terre. Terre contends that he applied for bo th teaching and non-teaching positions and had several interviews but did not receive an offer of employment un til December 2014, and that the offer was not made in good faith. In its response to the EEOC charge , SCS claimed that Terre remained its employee and that when he was cleared to return to work on October 13, 2014, it sought to place him in a vacant position and “recently placed him” in an economics position at Manassas High.Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 5 - Toledo Cardiology Consultants, Inc. , 548 F.3d 405, 410 (6th Cir. 2008). Terre does not allege any direct evidence of age discrimination, so we must look at circumstan tial evidence and apply the McDonnell Douglas burden-shifting framework. Wexler v. White’s Fine Furniture, Inc. , 317 F.3d 564, 570-74 (6th Cir. 2003). Under this analys is, the employee first has the burden to prove a prima facie case. Id. at 574. If he succeeds, the employer must show a legitimate, nondiscriminatory reason for th e adverse employment action. Id. If a satisfactory response is made, the employee has the burden to rebut this reason by proving that it was merely pretext for age discrimination. Id. Ultimately, this requires showing by a preponderance of the direct or circumstantial evidence that “but for” his age, the employee would not ha ve suffered the adverse action. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 177-78 (2009). A. Prima Facie Case To make out a prima facie case of age disc rimination using circumstantial evidence, the employee must show that he (1) is a member of the protected class; (2) was subject to an adverse employment action; (3) was qualified for the po sition he held; and (4) was replaced by someone outside the protected class. Geiger v. Tower Auto. , 579 F.3d 614, 622 (6th Cir. 2009). In instances of a reduction in force, however, the final prong is slightly different, as the employee must instead show “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). In this case, it is undisputed that Terre was disabled and was qualified for his position as a full-time economics teacher. The district cour t found, over Defendants’ objection, that Terre suffered an adverse employment action when Terre di d not have a job to return to when his leave ended. As it is not disputed that there was a reduc tion in force, the issue on appeal is the districtCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 6 - court’s finding that Terre was not singled out due to his age. Such a showing could be made if Terre provides evidence that he possessed qualifications superior to thos e of a younger co-wor ker working in the same position as the plaintiff. Alterna tively, a plaintiff could show that the employer made statements indicative of a discriminatory motive . . . . The guiding principle is that the evidence must be sufficiently probative to allow a factfinder to believe that the employer intentionally discriminated against the plaintiff because of age.
Barnes , 896 F.2d at 1466; see also Gragg v. Somerset Tech. Coll. , 373 F.3d 763, 768 (6th Cir. 2004). Here, there are no statements regarding Terre’s age, but Terre is able to show that he is more qualified than a similarly situated teacher. The district court found that because Terre was the only economics teacher at Wooddale, he and Quinn were not in the same position. However, both were teacher s at Wooddale and both taught in the Social Studies Department and woul d be able to teach additional subjects if they passed the Praxis exam. Terre’s duties as a full-time economics teacher could, and were, absorbed by the other teachers, including Quin n. Thus, Quinn’s and Terre’s positions are similar. Additionally, Terre also taught for much longer than Quinn, received satisfactory reviews, has achieved the Career Level III rati ng, and is qualified at th e Professional Level. Quinn is a new teacher and is still at an Apprenti ce level. Due to Terre’s experience, he is able to show his qualifications for the position are stronger than Quinn’s, and he succeeds in presenting his prima facie case.
B. Legitimate Non-discriminatory Reason and Pretext The next step is whether Defendants provid ed a “legitimate nondisc riminatory reason” for the adverse action. Schoonmaker v. Spartan Graphics Leasing, LLC , 595 F.3d 261, 264 (6th Cir. 2010). Here, SCS argues that it needed to eliminate seven teaching positions because of “budgeting constraints” and found that Terre’s economics position could be absorbed by otherCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 7 - teachers and thus could be excessed. SCS thus meets its burden of showing a legitimate nondiscriminatory reason for the elimination of Terre’s position. We must now evaluate whether Terre showed pretext. Terre points out that Quinn failed the Praxis exam twice and argues that was the only reason the economics classes were spread between multiple teachers, as Kyle’s original plan was for Quinn to take over Terre’s classes, which is not in accordance with SCS’s protocol for excessing teac hers. He also brings up the fact that SCS did not place Terre in any of th e vacant positions he applied for and that those positions were filled with younger individuals. It is not necessarily unreasonable for a school to excess its full-time economics teacher due to budgetary constraints when, as in this case, it is able to divide th e teacher’s classes among other teachers and provide sufficiently for the sc hool’s programming needs. Similarly, the fact that the applicants selected to fill other vacant positions for wh ich Terry applied are younger than he is does not in and of itself show that his ag e was a factor in the decision to eliminate his position. As mentioned above, Terre points to no st atements or other actions that address his age. Any arguably discriminatory comments made by Kyle correlate to Terre’s ADA, not ADEA, claim. Accordingly, Terre has not shown “a dditional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Barnes , 896 F.2d at 1465.
III. ADA Claims Terre brings two claims under the ADA. He argues (1) that he was denied reasonable accommodations and (2) that he was subject to disparate treatment. The ADA states in relevant part that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hi ring, advancement, or discharge ofCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 8 - employees, employee compensation, job training, a nd other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). SCS does not dispute that it is a covered employer. The ADA also requires use of reasonabl e accommodation unless it woul d pose an undue hardship to the employer. Reasonable accommodations may include (A) making existing facilities used by empl oyees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modifi ed work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examina tions, training materials or policies, the provision of qualified readers or interpre ters, and other similar accommodations for individuals with disabilities.
Id. § 12111(9). A. Failure to accommodate claim The district court found that Terre did not exhaust his administra tive remedies with regard to his reasonable accommodation claim. Exhaustion of administrative remedies is a condition precedent to bringing suit claiming a violation of the ADA. Parry v. Mohawk Motors of Mich., Inc. , 236 F.3d 299, 309 (6th Cir. 2000). This means an employee must file a charge of discrimination with the Equal Employment Opportunity Commi ssion (“EEOC”) within 180 days of the alleged discrimination, or within 300 da ys if the employee instituted proceedings with state or local agencies, 42 U.S.C. § 2000e-5(e), and he must receive a right-to-sue letter from the EEOC before filing suit. “A complainant need not attach the correct legal conclusion to allegations in the charge, conform to legal tech nicalities, or use the exact wording which might be required in a judicial pleading.” Jones v. Sumser Ret. Vill. , 209 F.3d 851, 853 (6th Cir. 2000) (internal quotation marks omitted). Terre’s charge with the EEOC contained the following allegation:Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 9 - On or about October 1, 2009, I began work ing for the above named employer. On October 3, 2013, I was placed on FMLA due to my disability. On March 24, 2014, I requested extended leave as an accommodation to my disability which was granted until August 1, 2014. On April 15, 2014, I received an email from Michael Kyle, Principal stating my positio n was being replaced by Ryan Quinn. On or about June 10, 2014, I received a letter from Dorsey Hopson terminating my employment. I believe I have been discriminated against because of my age (71) and disability in viol ation of the Age Discrimina tion in Employment Act of 1967, as amended (ADEA) and in violation of in violation of [sic] the Americans with Disabilities Act Amendments Act (ADAAA) 2008. On the form, he checked the boxes for age and disa bility discrimination. He indicated that the latest date of discrimination was June 30, 2014 , the date that employment contracts for nontenured teachers without a position for the upcomi ng school year ended. He did not check the box for continuing action. The district court divided Terre’s claims into a pre-June 30 claim for forced FMLA leave and a post-June 30 claim dealing with Terre’s ch allenges to finding an alternative position, and we will analyze his claims using that framework. 1. Pre-June 30, 2014 Claim Terre argues the district court erred when it determined that the only pre-June 30 accommodation claim that was made involved Terre be ing forced to take FMLA leave. In his brief, Terre contends th at his claim was that SCS took away his job while he was using approved leave and, therefore, negated his right to a reasonable accommodation by making the accommodation—the leave—ineffective. Defenda nts argue that such a claim cannot be supported by an investigation into the charge. In his amended complaint, Terre stated the following was an alleged violation of the
ADA: Defendant’s multiple failure(s) to engage in an interactive process, in good faith, with Plaintiff on how to implement or effect appropriate reasonableCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 10 - accommodations, including but not limited to Defendant’s unilateral termination of an ongoing reasonable acco mmodation (leave) and term ination of Plaintiff by refusing to return Plaintiff to his pos ition or a substantially similar position. This supports Terre’s assertion that his accomm odation claim was not forced FMLA leave but that he was granted an accommodation which was then made ineffective due to his position being excessed. Thus, we must now address whether this claim wa s fully exhausted. It is undisputed that Terre’s disparate tr eatment/termination claim was exhausted, and generally, “[a] termination claim differs in kind and date from an accommodation claim.” Jones , 209 F.3d at 854. In this case, however, Terre ’s disparate treatment and pre-June 30 accommodation claims, although separate and distin ct, were both exhausted through the same language in the charge. The charge makes clear that Terre was on approved leave, requested more approved leave as an acco mmodation, and was on such leave when excessed. As such, his claim that he was excessed while on leave, nullifying his accommodation and leaving him without a replacement accommodation, is arguably apparent on the face of the charge. Even if not, an investigation into the termination would lead the EEOC to look in to the leav e situation and learn that Terre was excesse d while being accommodated. Fo r these reasons, we find that Terre exhausted his administrative remedies re garding his pre-June 30 accommodation claim. 2. Post-June 30, 2014 Claim The next issue is the claim for failure to accommodate after June 30, 2014, the date Terre listed as the last date of di scrimination on the charge. Te rre argues that Defendants had a “continuing duty to accommodate [his] disability,” and an EEOC investigation into the claim in his charge that he was wrongly terminated would ha ve led to an investigat ion into his allegations that Defendants did not reasonably accommodate his disability after returning from leave. The district court found this claim wa s not exhausted, but in doing s o, the court relied on its findingCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 11 - that Terre had not exhausted his pre-June, 30 2014, accommodation claim. The analysis changes now that we have determined Terre exhausted his earlier accommodation claim. Terre’s claim that he was not accommodated when he returned to work is an extension of his claim that his accommodation of protected leave was nullified when he was excessed. For this reason, we find that Terre has exhausted his administrative remedies on his ADA accommodation claim and remand the claim to the district court to analyze the claim in the first instance.
B. Disparate Treatment Terre also brings a disparate treatment claim under the ADA. Similar to his ADEA claim, we analyze his ADA dispar ate treatment claim using the McDonnell Douglas framework. Whitfield v. Tennessee , 639 F.3d 253, 259 (6th Cir. 2011). The first step is for the employee to make out a prima facie case. This requires the employee to show that (1) he or she is di sabled; (2) otherwise qualified fo r the position, w ith or without reasonable accommodation; (3) suffered an adverse employment decision; (4) the employer knew or had reason to know of th e plaintiff’s disability; and (5) the position remained open while the employe r sought other applicants or the disabled individual was replaced.
Id. (quoting Macy v. Hopkins Cnty. Sch. Bd. of Educ. , 484 F.3d 357, 365 (6th Cir. 2007)). As this case involves a reduction in force, there is again a different pleading standard for the prima facie case. See Arthur v. Am. Showa, Inc. , 625 F. App’x 704, 707 (6th Cir. 2015). “[T]he plaintiff is not required to de monstrate the fifth prong of the prima facie framework because he is not replaced. Instead, the plaintiff must introduce additional direct, circumst antial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Id. (citations omitted). If the employee makes out a prima facie case, the burden shifts to the empl oyer to show a legitimate non-di scriminatory reason for the discharge. Whitfield , 639 F.3d at 259-60. If the employe r succeeds, the employee must thenCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 12 - prove that the employer’s explanation is pretextual. Id. As with an ADEA claim, the employee must show that the disability was a but-for cause of his discharge. Lewis v. Humboldt Acquisition Corp ., 681 F.3d 312, 321 (6th Cir. 2012). 1. Prima Facie Case The district court first found that Terre failed to make out a pr ima facie case. There is no dispute that Terre was disabled within the me aning of the ADA and that Defendants knew he was disabled. The district court also found th ere was an adverse action and that although the evidence was slight, a jury could find that Kyle singled out Terre due to his disability when deciding which position to excess. As the above findings are not at issue on appeal, the only part of the prima facie test th at we must now consider is whether Terre was qualified for the job. The district court found, and Defendants argue, that Terre was not qualified because he could not meet the attendance requirements of the job. This is because at the time Terre’s position was excessed, he was on medical leave and had not been releas ed to go back to work, and at the time he filed his EEOC charge, he had not been scheduled to return to work. Terre disputes this finding, arguing that he was on pr otected medical leave and thus cannot be found unqualified due to that protected status. To succeed, Terre must show that he is otherwise qualified for the position, with or without reasonable accommodation. Approve d medical leave may be a reasonable accommodation and an inability to work while on su ch leave does not mean that an individual is automatically unqualified under the ADA. Cehrs v. Ne. Ohio Alzheimer’s Research Ctr. , 155 F.3d 775, 782 (6th Cir. 1998) (“The presumption that uninterrupted attendance is an essential job requirement improperly dispenses with the burden-shifting analysis set forth in Monette. ”).Case No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 13 - Terre’s leave began October 25, 2013, and he re quested and was granted extensions of his leave, which ultimately concluded on October 13, 2014. Terre made requests to communicate with SCS before filing his EEOC charge, and he attempted to find another position once he was cleared to go back to work. It was apparent that Terre intended to return to work, and he was not requesting an a ccommodation in terms of a flexib le schedule when he returned. Rather, his accommodation was taking approved leav e and properly applying for extensions of such leave. He did not fail to communicate or follow policy. Thus, we find that Terre was qualified at the time of the adverse action and successfully makes out a prima facie case. 2. Legitimate Non-discriminatory Reason and Pretext The next step is whether the employer offe red a legitimate and non- discriminatory reason for the adverse action. In this ca se, the offered reason is a reductio n in force, which as discussed above, meets Defendants’ burden. The burden then shifts back to Terre to show that the reduction in force is only pretext fo r discrimination based on his disa bility, and that “but for” his disability, he would not have suffere d the adverse employment action. The evidence of pretext in this claim is ve ry similar to the ADEA claim; however, a key difference is that there are comments by Kyle rega rding Terre’s health. Kyle told Quinn to look into getting an economics certification because he was not sure about Terre’s health or whether Terre’s hip was “rehabilitated” enough for him to return to Wooddale. Specifically, Quinn explained that Kyle told him, “I’m not sure abou t Dr. Terre’s health and so he’s like we need somebody to do economics. So he asked me . . . .” Kyle also emailed Terre about the possibility of teaching from a wheelchair, stating that “I don ’t think teaching from a wheelchair is an option if you think back to the difficulty that Minton had but that is your call too. If you can do it, do it regularly, effectively, and successfully then I am all for it.” These comments suggest thatCase No. 16-6675, Joseph Terre v. Dorsey Hopson, II, et al.

- 14 - Terre’s health was an issue when Kyle made the decision to excess Terre’s position. Additionally, Terre points to the SCS guidelines about sta ffing decisions by principals. 4 SCS is unable to show why it chose to excess Terre’s position instead of Quinn’s when both could have taught the same economics and history classes, and Terre had taught for a longer period than Quinn. Combined with the comments about his h ealth and disability, Te rre succeeds in showing that there is a genuine dispute of material fact on the issue of pretext. Accordingly, this claim is remanded to the district court for a fact-finding determination. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

4 Below is the procedure, not disputed for purposes of summary judgment, upon which Terre relies: Principals “must ensure that they have certified teachers in their buildin g there to teach and to make sure that they are, that they have the right teachers who can continue their program.” There are exceptions, if for example, a principal for a high school still “may not be able to complete a master schedule to make sure all kids get the required credits for graduation” meaning a school may be allocated 10 teachers but due to requirements of graduation that may have to do 12. Further, for curriculum reasons, a principal may excess a higher performe r if she can “run the schedule and offer the type of courses with fewer people. “[SCS] principals are having to do more with less, year after year after year.” Therefore, Defendant advises principals they may excess a Level 5 teacher who only teaches English, if th at means keeping a Level 4 teacher who teaches English and Math.