Tammy Rosebrough v. Buckeye Valley High School

Filing

OPINION and JUDGMENT filed: Grant of Summary Judgment is REVERSED and case is REMANDED, decision for publication pursuant to local rule 206. Cornelia G. Kennedy, Boyce F. Martin , Jr. and Jane Branstetter Stranch (AUTHORING), Circuit Judges.

Case: 10-4057

Document: 006111393987

Filed: 08/08/2012

Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0255p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 10-4057
v.
>
,
BUCKEYE VALLEY HIGH SCHOOL,
Defendant-Appellee. N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 09-00182—Gregory L. Frost, District Judge.

TAMMY ROSEBROUGH,

Plaintiff-Appellant,

Argued: January 13, 2012
Decided and Filed: August 8, 2012
Before: KENNEDY, MARTIN, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Daniel H. Klos, Columbus, Ohio, for Appellant. John C. Albert, CRABBE,
BROWN & JAMES, LLP, Columbus, Ohio, for Appellee. ON BRIEF: Daniel H. Klos,
Columbus, Ohio, for Appellant. John C. Albert, CRABBE, BROWN & JAMES, LLP,
Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Plaintiff Tammy Rosebrough appeals the
district court’s grant of summary judgment in favor of Defendant Buckeye Valley High
School in her suit alleging 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., and alleging intentional infliction of emotion distress. The district
court held for Buckeye Valley on all claims based solely on the finding that Rosebrough

1

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

was not a qualified individual under the ADA.

Page: 2

Page 2

For the following reasons, we

REVERSE the judgment of the district court and REMAND for further proceedings.
I. BACKGROUND
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

-2-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

Page: 3

Page 3

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.
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
-3-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

Page: 4

Page 4

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.
On March 11, 2009, Rosebrough filed suit against Buckeye Valley asserting
violations of the ADA and the Ohio Revised Code, § 4112.02 et seq., for discrimination
due to a disability, a perceived disability, and disparate treatment. She also alleged
intentional infliction of emotional distress. In 2010, Buckeye Valley moved for
summary judgment asserting Rosebrough could not establish a prima facie case on any
of her claims, and Buckeye Valley was entitled to political subdivision immunity on her
tort claim and was not liable for punitive damages as a matter of law. Finding that
Rosebrough was not qualified to be a bus driver because she did not have a CDL, the
district court granted summary judgment to Buckeye Valley on all claims. Rosebrough
timely appealed.
II. ANALYSIS
A.

Standard of Review
This court reviews a district court’s grant of summary judgment de novo. Geiger

v. Tower Auto., 579 F.3d 614, 620 (6th Cir. 2009). Summary judgment is appropriate
if there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a) (2010). The moving party has the burden of
proving the absence of a genuine issue of material fact and its entitlement to summary
-4-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

Page: 5

Page 5

judgment as a matter of law. Celtex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All
facts, including inferences, are viewed in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The central issue is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003)
(en banc) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
Buckeye Valley moved for summary judgment, therefore this court must accept the facts
alleged by Rosebrough as true and draw all reasonable inferences in her favor.
B.

Disability Discrimination
Neither party argued below or on appeal that an action for handicap

discrimination under Ohio law employs a different legal analysis than that for disability
discrimination under the ADA. “[B]ecause Ohio case law tends to suggest that it entails
the same legal analysis as that under the ADA,” we may review Rosebrough’s state and
federal claims solely under the ADA analysis. Brenneman v. MedCentral Health Sys.,
366 F.3d 412, 418 (6th Cir. 2004); see also Martin v. Barnesville Exempted Vill. Sch.
Dist. Bd. of Educ., 209 F.3d 931, 934 n.2 (6th Cir. 2000) (“Both federal and Ohio
disability discrimination actions require the same analysis.”); City of Columbus Civ.
Serv. Comm’n v. McGlone, 697 N.E.2d 204, 206 (Ohio 1998) (Because the “federal
Americans with Disabilities Act (ADA) is similar to the Ohio handicap discrimination
law . . . [w]e can look to regulations and cases interpreting the federal Act for guidance
in our interpretation of Ohio law.”).
Buckeye Valley argued on summary judgment that Rosebrough could not
establish any element of a prima facie case of discrimination on any of her claims.1
A prima facie case of discriminatory discharge requires a plaintiff to show (1) she is
disabled; (2) she was otherwise qualified for the position, with or without reasonable
1

Rosebrough appears to rely on circumstantial evidence of discrimination and does not challenge
the district court’s citation to indirect evidence tests.

-5-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Page: 6

Rosebrough v. Buckeye Valley High Sch.

Page 6

accommodation; (3) she suffered an adverse action; (4) the employer knew or had reason
to know of her disability; and (5) she was replaced or the job remained open.2 Plant v.
Morton Int’l Inc., 212 F.3d 929, 936 (6th Cir. 2000). “An individual is considered
‘disabled’ under the ADA if she (1) ‘has a physical or mental impairment that
substantially limits one or more of the major life activities of such individual,’ (2) ‘has
a record of such impairment,’ or (3) is regarded by her employer as having such an
impairment.” Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008) (citation
omitted); see also 42 U.S.C. § 12102(2).
The district court assumed without deciding that Rosebrough was disabled under
the ADA but determined that she failed to show the second element because she lacked
a CDL and thus was not “otherwise qualified” for the position. The court granted
summary judgment to Buckeye Valley on all claims on this one basis. The district court
did not reach the last three elements of the prima facie case. On appeal, the parties have
focused their briefing on whether Rosebrough was a qualified individual under the ADA.
1.

Qualified Individual

All discrimination claims brought by Rosebrough require her to show “she was
otherwise qualified for the position, with or without reasonable accommodation.” See
Hopkins, 196 F.3d at 660. The ADA defines a “qualified individual” as follows:
an individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires. For the purposes of this subchapter,
consideration shall be given to the employer’s judgment as to what
functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the
job.

2

In a disparate treatment claim, the plaintiff can satisfy the fifth element of the prima facie case
by showing that similarly situated non-disabled employees were treated more favorably. See Hopkins v.
Elec. Data Sys. Corp., 196 F.3d 655, 660 (6th Cir. 1999).

-6-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

Page: 7

Page 7

42 U.S.C. § 12111(8). The district court held that a CDL is required to perform the
essential functions of serving as a school bus driver. Because Rosebrough did not have
a CDL, the court held she was not “otherwise qualified” to be a school bus driver and
dismissed her claims.
The district court relied on the Second Circuit case Kinneary v. City of New York,
601 F.3d 151 (2d Cir. 2010). In Kinneary, the court held that a sludge boat captain
whose captain’s license had expired was not “otherwise qualified” to be a captain
because he could not perform the essential functions of his job without his license. Id.
at 157. This case would be persuasive if we were reviewing claims by a school bus
driver; in fact, Rosebrough admits that a CDL is required in order for her to perform as
a school bus driver. However, Rosebrough asserted below, and again more carefully on
appeal, that she was hired “as an employee without wages, provisionally subject to being
issued a CDL,” (R. 21, Response in Opposition to Summary Judgment Motion, at 1516), in other words, as a “bus driver trainee,” (Appellant Br. at 23).3
The plain language of the ADA covers discrimination on the basis of disability
during job training. 42 U.S.C. § 12112(a) (“No covered entity shall discriminate against
a qualified individual on the basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.”). The coverage
provisions include this expansive list, extending beyond recognized traditional
employment activities, to prevent periods—including training periods—during which
discrimination might be undertaken with impunity. Thus, the statutory inclusion of “job
training” protects individuals while they receive the training required to perform the
essential functions of their ultimate job position; it protects them from discrimination
that could deny them the means to obtain qualifications necessary to undertake that

3

Rosebrough used the phrase “bus driver trainee” for the first time on appeal. Buckeye Valley
responds that Rosebrough has waived the argument that she was “otherwise qualified” to be a bus driver
trainee. But Rosebrough argued to the district court that she was discriminated against during her training
period. Thus, the argument is properly before us.

-7-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Rosebrough v. Buckeye Valley High Sch.

Page: 8

Page 8

position. It cannot be disputed that the ADA covers individuals in training without
regard to whether they are called employees, conditionally-hired employees, trainees,
or a title specific to one employer. See United States v. Miss. Dep’t of Public Safety,
321 F.3d 495, 500 n.4 (5th Cir. 2003) (holding the ADA protects trainee at patrol safety
academy from discrimination); Desmond v. Mukasey, 530 F.3d 944, 967 (D.C. Cir.
2008) (finding a genuine issue of material fact requiring trial on discrimination claim by
FBI trainee who had not graduated from FBI academy).
When the events at issue in this litigation occurred, Rosebrough was in the job
training period necessary to obtain her CDL and learn how to perform as a school bus
driver. Buckeye Valley does not state the essential functions of Rosebrough’s training
position. However, in reviewing step two of Rosebrough’s prima facie case, it is
unnecessary to speculate as to whether she was “otherwise qualified” for the training
position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’
was in fact a ‘trainee,’ and was given the training.” (Appellee Br. at 26). It 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.

Therefore, 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.
2.

Remaining Prima Facie Elements

The district court did not address any prima facie elements of Rosebrough’s six
discrimination claims except for the “otherwise qualified” element and neither party
briefed the remaining elements on appeal. We remand to allow the district court to
determine in the first instance whether Rosebrough has shown genuine issues of material
fact on the remaining prima facie elements. See Yeschick v. Mineta, 521 F.3d 498, 506
(6th Cir. 2008) (finding a genuine issue of material fact on the sole issue on appeal and
remanding for the district court to determine in the first instance whether the plaintiff
met the remaining elements of his prima facie ADEA case); White v. Burlington
-8-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Page: 9

Rosebrough v. Buckeye Valley High Sch.

Page 9

Northern & Santa Fe R. Co., 364 F.3d 789, 808 (6th Cir. 2004) (finding remand
appropriate where consideration of remaining issue requires “a careful examination of
the entire record”); Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 261-62 (6th Cir.
2002) (reversing on grounds for summary judgment below and remanding consideration
of remaining arguments in Title VII case).
C.

Intentional Infliction of Emotional Distress
In order to defeat a motion for summary judgment on a claim for intentional

infliction of emotional distress under Ohio law, a plaintiff must present evidence creating
a genuine issue of material fact:
(1) that the actor either intended to cause emotional distress or knew or
should have known that actions taken would result in serious emotional
distress to the plaintiff, (2) that the actor’s conduct was so extreme and
outrageous as to go beyond all possible bounds of decency and was such
that it can be considered as utterly intolerable in a civilized community,
(3) that the actor’s actions were the proximate cause of the plaintiff’s
psychic injury, and (4) that the mental anguish suffered by the plaintiff
is serious and of a nature that no reasonable man could be expected to
endure it.
Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. 1995) (citation omitted); accord
Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995). Serious emotional distress requires
an emotional injury that is both severe and debilitating. Banford v. Aldrich Chem. Co.,
Inc., 932 N.E.2d 313, 319 (Ohio 2010).
As with Rosebrough’s discrimination claims, the district court granted Buckeye
Valley summary judgment on her emotional distress claim based solely on its analysis
of the “otherwise qualified” prong. The court held “there cannot be a genuine issue of
material fact with respect to ‘outrageous’ conduct by Buckeye Valley in light of the fact
that this Court found that Rosebrough failed to make out a prima facie claim of disability
discrimination.” Because the district court erred in its analysis of Rosebrough’s
discrimination claims, its rejection of those claims cannot form the basis for rejecting her
emotional distress claim.
-9-

Case: 10-4057

No. 10-4057

Document: 006111393987

Filed: 08/08/2012

Page: 10

Rosebrough v. Buckeye Valley High Sch.

Page 10

It is certainly far from clear on this record that Rosebrough could show a genuine
issue of material fact regarding whether Buckeye Valley’s conduct was extreme and
outrageous. See Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th Cir.
2009) (citing Baab v. AMR Servs. Corp., 811 F. Supp. 1246, 1269 (N.D. Ohio 1993)
(“[T]o say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be
something of an understatement.”)). However, as with Rosebrough’s discrimination
claims, the district court did not reach the remaining elements of her emotional distress
claim and the other elements were not briefed on appeal. The district court should be
provided with the opportunity to consider this claim, and Buckeye Valley’s asserted
defenses, in the first instance.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s grant of summary
judgment and REMAND for further proceedings consistent with this opinion.

- 10 -