*1 Monette, Roger and Doris MONETTE

Plaintiffs-Appellants, DATA SYSTEMS

ELECTRONIC

CORPORATION, Defendant-

Appellee.

No. 95-1114. Appeals,

United States Court of

Sixth Circuit.

Argued March 1996. July

Decided *3 briefed), (argued

Charles W. Palmer and MI, Robb, Palmer, Messing Taylor, & Plaintiffs-Appellants. Smith, Systems

Brian B. Electronic Data MI, Corp., Troy, Wymer (argued T. Martin Detroit, briefed), Duvin, Hutton, & and Cahn MI, Defendant-Appellee. LIVELY, MARTIN, and

Before: MOORE, Judges. Circuit MARTIN, J., opinion of the delivered the court, MOORE, J., joined. in which LIVELY, 1189), separate (p. delivered J. concurring opinion. Jr., MARTIN, Judge. F. Circuit

BOYCE appeals the district court’s Roger Monette summary judgment in favor of the award of Systems Data on his defendant Electronic defendant discriminated claim of his against him on the basis refusal to allow to file the court’s retaliatory alleging dis- complaint amended below, Unfortunately, charge. set forth the Detroit area. Monette For reasons part. did not receive an offer of after AFFIRM in and REVERSE in Each either of the interviews. interviewer Roger as a customer ser- Monette worked requisite stated that Monette lacked the representative for Electronic vice defendant computer technical skills and Monette duties, Systems. part of his Mon- Data As than enthusiastic at his interviews. was less equipment audio and visual ette delivered attempts Having failed its to relocate February of the offiee. On various areas position, to another Electronic Data Monette injured when a television Monette was Systems employ- permanently terminated his video cassette recorder fell off the cart 19,1993. ment November pushing, hitting him he was on the back and subsequently filed suit Monette requested shoulder. Monette indefinite *4 court, Systems in Electronic Data state al- leave, pay and received full and ben- medical leging that his former discrimi- Systems efits from Electronic Data for the against nated him violation of the Ameri- During that time Mon- next seven months. Act, 12101, § cans with Disabilities 42 U.S.C. reports ette submitted several medical Michigan Handicappers’ Rights and the Civil physicians detailing inability his various Act, Comp. Mich. Laws 37.1102.1The de- 1993, August return to work. In Monette subsequently fendant removed the case to benefits, long-term disability filed for claim- federal court in the Eastern District Mich- ing incapacitated completely that he was months, igan. Over the next several necessary unable to functions to parties engaged discovery pro- in extensive job. Sys- return to Data his old Electronic which, ceedings under the district court’s application long- tems denied Monette’s order, 11,1994. scheduling ceased on October term benefits and Monette’s full dispositive by All motions were to be filed pay September and benefits ceased on 15. Data October On October Electronic incapaci- Monette recovered from his total motion, Systems summary judgment filed a thereafter, showing up tation soon to work responsive to which Monette filed a brief in unannounced and with a note from his doctor opposition. November On Monette filed Unfortunately, po- on October 11. Monette’s a motion for leave to file a second amended Systems sition at Electronic Data had been complaint, seeking to a claim assert for retal- during eight filled month absence. No iatory discharge, alleging that Electronic representative posi- other customer service Systems Data fired him in retaliation for his tions were available. application compensation for worker’s bene- thirty-seven days, during Over the next fits. placed unpaid which time on Monette was On December the district court award- leave, personal supervisor Monette’s Laura summary judgment ed in favor of Electronic attempt Frizzell in an conducted search Systems Data on Monette’s state and federal to find Monette another with the In discrimination claims. an ac- efforts, company. To her facilitate Frizzell order, companying the district court also de- provide claims that she asked Monette to her nied Monette’s motion to file a second updated resume and that Monette complaint. timely appeal- amended Monette comply request. did not with this Monette ed to this Court. disputes During thirty-seven fact. this her search, day possible posi- appeal, Frizzell located a In this Monette takes issue Midland, However, Michigan. summary tion in Mon- with the district court’s award of judgment ette did not want to move out of the Detroit and the district court’s refusal to position. area and him did interview for allow to file second amended com arranged plaint. Frizzell for interviews for two com- review the award We district court’s puter operator summary Summary positions judgment that were available de novo. Monette, wife, Roger spouse Michigan Accordingly, 1. Doris Monette's also as- law. Systems serted a claim Electronic Data appeal gov- our resolution of the issues on also seeking damages for loss of consortium. Loss of erns Ms. Monette’s claim. contingent upon recovery claims are consortium Systems legitimate reason for .re- no offered “there is appropriate'where judgment is Monette, ... any material fact and fail placing as to and did not to make genuine issue judgment entitled to moving party is reasonable accommodation for Monette’s 56(c). law.” Fed.R.Civ.P. a matter of handicap, the district court awarded sum- summary judgment determining whether mary judgment in favor Electronic Data facts and reasonable we view the proper, Systems. light facts in a from those drawn inferences argues appeal, In this Monette that Elec- non-moving party. Ad favorable to the most reasonably Co., 144, 157, Systems Data failed to ac- tronic 398 U.S. v. Kress & ickes S.H. (1970). 1598, 1608, granting L.Ed.2d 142 commodate his 90 S.Ct. of a colorable the mere existence only thirty-seven days unpaid leave while properly not defeat dispute will factual position for him. they attempted to find a summary judgment. A supported motion Instead, only Monette claims that the ‘rea- parties dispute between genuine would have been to sonable’ accommodation fact must exist to render of material issue unpaid leave allow Monette remain judgment inappropriate. summary up indefinitely position opened until another Inc., Lobby, Liberty Anderson - lines, company. Along similar within the 2509-11, 242, 247-49, argues that the defendants should Monette *5 omitted). (1986) (citations After L.Ed.2d 202 jobs him than cus- considered other have record, we believe review of careful representative computer or tomer service summary awarded properly court district technician as a reasonable accommodation.2 Systems and Data to Electronic judgment tack, a somewhat different Monette On claims. Monette’s discrimination dismissed points to two situations which the defen- that it was concluded The district court position open employee’s an while dants held Monette unnecessary whether to determine they and claims that were on medical leave dis- case of had established genuine issue of mate- this evidence creates Act, holding that under crimination the defendants dis- rial fact as to whether Systems had established Data Electronic against him. criminated nondiseriminatory for ter- reason legitimate, that the The court noted minating Monette. argu- Systems two Electronic Data asserts position while Monette’s filled defendant First, the defendants ments in rebuttal. was in- on medical leave and Monette was jobs available point out that there were no was unable to forming that he the defendant Second, to work. when Monette returned job any circumstances. perform his that, they if had a argue even the defendants returned to Accordingly, when Monette (under they must duty requirement unannounced, rep- no customer service work Mon- accommodation to make a reasonable The court slot was available. resentative disability) attempt find work for to ette’s Sys- Electronic Data requiring found Monette, they reasonably accommodated his open indefi- to hold Monette’s tems unpaid medical disability by placing knowing way of nitely, when it had no days they at- thirty-seven while leave for Monette would return or when whether position. tempted place him in a new hardship on work, work undue would Further, Systems. Data Electronic analysis claims under the of the Americans with recognized court roughly par Act with Disabilities Americans defen- require Act Disabilities did brought under the Rehabilitation allels those position for Mon- to ‘create’ another dants (1995). 1973, § Maddox Act of 29 U.S.C. 794 vacancy. of an available in the ette absence 843, Tennessee, F.3d 846 University 62 Data v. that Electronic light of its belief disputing that are not pages vant. The defendants spends of his brief estab- 2. several Monette performed of his the duties performed Monette could have lishing physically have he could available, and job position had been if a accommoda- former duties with reasonable his former purposes of true for the this fact to be Systems. it assume Data tion Electronic appeal. argument this appears is irrele- to this Court that 1178 Cir.1995).3 (6th prohibits introducing 2 The Act em unlawful discrimination direct

n. discrimination, discriminating “against quali including evidence of evidence ployers from disability upon relied with a because of the fied individual disability decision, making employment regard ap its of such individual White, Rizzo, 761; 6, at 45 F.3d at 361 n. hiring, plication procedures, advance by introducing indirect evidence of ment, discrimi- discharge employees, production terms, nation to shift the burden of job training, and other compensation, legitimate, to articulate a non- conditions, privileges employment.” discriminatory making 12112(a). reason for the adverse 42 To recover on claim U.S.C. See, Rizzo, e.g., decision. Act, of discrimination under the 1) an individual with a must show that: he is 2) qualified” disability; he is “otherwise Defining applying appropriate requirements, with or with analyzing framework for claims of discrimi- accommodation; and he out reasonable nation based on an individual’s has discharged solely by reason of his handic proven to abe difficult task.5 Courts have Maddox, ap.4 (relying 62 at 846 F.3d applied, involving in some cases a claim of Doherty College Optometry, v. Southern discriminatory treatment on the of a basis Cir.1988) (Rehabilita 570, 862 F.2d 573 analysis a burden-shifting roughly claim), denied, tion Act cert. 493 U.S. equivalent Supreme to that set forth (1989), 22 107 L.Ed.2d to ana S.Ct. Green, Corp. Court McDonnell v. lyze brought claims under Americans with 792, 802-03, 1817, 1824-25, 411 U.S. 93 S.Ct. Act); Act and Rehabilitation ac Disabilities (1973), 36 L.Ed.2d 668 and refined in Texas Learning Rizzo v. World cord Children’s Burdine, Dep’t Community Affairs Centers, Inc., Cir.1996); 248, 252-56, 84 F.3d 1089, 1093-95, Corp., (1981)

White v. York Int’l 360- disparate L.Ed.2d 207 for claims of *6 (10th Cir.1995); Frank, 61 Taub v. 957 F.2d VII, treatment discrimination under Title (1st Cir.1992) (Rehabilitation claim). 8, 10 Act even where direct evidence of discrimination plaintiff alleges In cases which the that he Jasany exists. See v. United States Postal Serv., (6th discriminatory Cir.1985); victim of or she is the treat 755 F.2d 1244 Prewitt ment, may Serv., attempt a to establish v. United States Postal 662 F.2d 292 significantly 3. discriminatory Claims of discrimination under Mich viduals in a manner. Choate, 287, 298-301, igan essentially law track those under federal See Alexander v. 469 U.S. 712, 718-20, Michigan High (1985); law. See Sandison v. School Ath 105 S.Ct. 83 L.Ed.2d 661 Ass'n, Inc., 483, (E.D.Mich. F.Supp. Co., 424, 431, letic 863 487 Griggs v. Duke Power 401 U.S. 91 1994), 1026, grounds, 849, 853-54, rev’d on other 64 F.3d (1971) (Title S.Ct. 28 L.Ed.2d 158 Therefore, (6th Cir.1995). 1035-37 claim). our resolu VII If a is able to establish that tion of Monette's claim under the federal statute facially policy disparately impacts neutral dispenses Michigan also with his claim under the upon protected group, his or her the burden Handicappers' Rights Act. See v. Civil Ashworth employer shifts to the defendant to establish Products, Inc., Mich.App. Screw 176 policy Jefferson necessity.” exists out of "business 737, 104-05, denied, 101, appeal 440 N.W.2d 433 431, (Title Griggs, 401 U.S. at S.Ct. at 91 853 VII 873, (1989); N.W.2d 690 Mich. ley Hosp., 447 Hall Hack case); 12112(b). § see also 42 U.S.C. 48, 893, Mich.App. 210 532 N.W.2d VII, addition, Like Title (1995). Americans with Disabilities 897-98 In we note that under statute, requires employers ostensibly Act to eliminate Michigan employers are not even disparately impact neutral required place employees barriers that the dis- disabled in a vacant 12112(b)(3)(A)-(B). position. § abled. See 42 U.S.C. Id. Similarly, analytically in cases similar to Title claims, disparate impact employers VII are re- brought 4. For claims the Rehabilitation under Act, quired reasonably accommodate disabled indi- must also establish that the defen- recipient imposes viduals funding. dant a unless such accommodation is of federal See Doher- 12112(b)(5)(A), hardship, ty, e.g., § 862 F.2d at 573. undue 42 U.S.C. required qualifications are and to eliminate stan- job requirements disparately dards or disad- may proceed any 5. Plaintiffs one more of vantage requirements the disabled unless such example, several of theories discrimination. For "job-related,” disparate impact theory, under are "essential” to satisfac- a disabled indi- and/or may bring tory performance job. facially viduals a claim a of neu- Id. at 12112(b)(6). policy tral or statute which affects disabled indi- discrimination, (5th Cir.1981); mandatory Regents and a inference Pushkin v. of of Colorado, 658 Cir. F.2d 1372 Univ. discrimination must be drawn the fact of 1981). However, supporting Hicks, rationale Mary’s finder. St. Honor Ctr. v. 509 analysis entirely persua this modified 502, 506-07, 2742, 2747, 113 S.Ct. 125 sive, closely pause to examine more (1993). and we 407 L.Ed.2d once the em- dis the frameworks of ployer has come forward with evidence a analyzed. should crimination claims be action, legitimate reason for its the inference mandatory a shifts from one the fact finder applying the McDonnell In Title VII cáses draw, permissive a formula, must one the fact where no direct Douglas/Burdine draw, exists, may and finder the burden shifts back evidence of discrimination n prima employ- of case discrimi- to the establish establish facie 1) by establishing she is a mem- explanation pretext nation that: proffered er’s is a mere 2) class; protected she is ber of a 510-11, for unlawful discrimination. Id. at position; she suffered an adverse 2749; 113 S.Ct. at Manzer v. Diamond decision; 4) she was re- and Co., Shamrock Chemicals placed by protected member outside (6th Cir.1994). Co., 932 Ang v. Procter & class. Gamble Regents In Pushkin v. Univ. Colora- of of (6th Cir.1991) (relying on F.2d do, developed the Tenth Circuit a modified Co., Gagne v. Northwestern Nat’l Ins. shifting approach' burden —modeled Cir.1989), McDonnell F.2d analyz- framework' —for 1824).6 at Douglas, 411 U.S. ing claims. 658 discrimination F.2d If able to at 1387. Pushkin involved claim discrimination, case alleged medical doctor who that he had been production employer then shifts to the wrongfully denied to the Universi- admission justi- non-discriminatory legitimate, assert a Psychiatric Residency ty of Colorado Pro- its action. If the fication for Id. multiple production, gram because he scle- fails in this burden of suffered appellate upheld introduce other evidence rosis. The the district need not court older; Douglas, protected aged forty characterized class to In McDonnell the Court those it prong requiring against employees of the test the fourth plaintiff does not ban discrimination “that, rejection, posi they age forty. show after his over Id. because are open framework, continued light statutory tion remained Court con- *7 persons applicants plaintiff's] greater [the seek that "there can inference cluded be no 802, qualifications.” (as at 411 at 93 S.Ct. age opposed ’40 and discrimination over’ also, however, explained discrimination) Court that 1824. The year-old replaced by when a is 40 required prima a the elements replaced year-old year-old is a 39 than when a 56 facie depending scenar case differ on the factual year-old.” Accordingly, by a the Court held 40 litigation. giving io the at n. rise to Id. 802 plaintiff or she that a need not show that he was Accordingly, 93 n. 13. this Court S.Ct. at 1824 replaced by protected a member the class outside fourth has at various times characterized the prima his or case. as an element of her Id. facie requiring prong test as the of the reasoning apply equal does with force This not person replaced by that he or she was show types of claims. For to other discrimination See, protected e.g., Talley v. outside the class. example, gender a claim of discrimination Restaurant, Ltd., Pitino 61 F.3d Bravo plaintiff that she Title VII is a claim the was 1995) (citing Hosp., v. Toledo Cir. Mitchell she is a discriminated because woman. 1992)); Ang, Cir. 932 F.2d 964 F.2d upon allegation Because the claim founded the case, age a recent 548. In discrimination basis that the defendant on the discriminated plaintiff bringing Supreme held that a Court status, plaintiff's female a lesser inference of Employ Age under the Act, in claim Discrimination arises discrimination if it is established that seq., U.S.C. need not ment 621 et Conversely, defendant hired female. if another part prima of a that he or establish as case facie hired a shows that the defendant by person protect replaced she was outside the male, greater the defendant Caterers, inference that dis- ed O’Connorv. Coin class. Consolidated plaintiff's female 1307, 1310, criminated on basis of the Corp., - U.S. -, -, comments, Despite foregoing exists. status however, (1996). reasoning, 134 L.Ed.2d 433 The Court’s however, individual we do believe a disabled necessarily apply to other does not always or she was re- need establish that he types Court of discrimination claims. As the protected class placed someone explained, Act bans based on outside discrimination general, prima employee’s age part See n.ll. in and limits of her case. facie infra 3)The reject- findings court’s that “Dr. Pushkin was then has the residency program going forward with rebuttal ed from the on the basis evidence show- ing reject- that the defendants’ reasons for multiple preclude sclerosis his would ing misconcep- are based on performing him from inwell the duties of the ” conclusions, tions or unfounded factual program.... Id. at 1382-83. The court rejection that reasons articulated for the then characterized the issue to be decided in handicap encompass unjust- other than the the case: handicap ified consideration of the itself. The record is clear that Dr. Pushkin es- apparently The Pushkin court necessary ability that he had believed tablished that this test would take account of fact despite handicap. examining his The employers rely employee’s often on an committee, however, focused on the handi- decisions, disability making employment in continuously cap in connection with deter- rarely present fact in gen Title VII race mining whether to admit him to the resi- der discrimination cases. What the court dency program. emphasized It factors however, recognize, failed to is that when an handicap pa- such as the effect of the (or establishes) employer admits the evidence resulting tients and the effect on Dr. upon employ its decision was based Thus, merely Pushkin. the issue is not ee’s direct evidence of discrimina handicap played prominent whether the tion exists. Because direct evidence of the rejection, dealing his as in cases exists, employer’s application discrimination alleged discrimination on the basis of Douglas burden-shifting McDonnell (where race, example race is never inappropriate. framework is Healey v. consideration), expressly Cf. mentioned as a Psychiatric Hosp., Southwood rejecting the issue is whether Dr. Pushkin (3d Cir.1996) 131-32 (pointing out in a Title expressly weighing implication after VII case that the Douglas frame justified. work apply does not in cases where direct Thus, Id. at expressly 1385-86. the court exists). evidence of discrimination only The recognized that the evidence established resolution, question left disability in most defendants had taken Dr. Pushkin’s dis- discrimination eases in which the ability making into account when the decision (or disability admits reliance on the other program. refuse admission into the Be- exists), direct evidence of discrimination lieving that the McDonnell frame- employment whether the adverse decision work must be modified to take account of the solely employee’s was based disability. ‘unique’ rely fact that defendants often on an question by answering This is resolved what disability individual’s discrimina- disputed is most often the issue eases in cases, tion the Tenth Circuit established the which the has relied on employ following test Pushkin: ee’s to make the deci must establish a sion; whether is otherwise by showing case that he was an oth- *8 qualified, with or without reasonable accom qualified handicapped person apart erwise modation, perform the essential functions handicap, rejected from his and was under job. of disputed This issue can be re gave circumstances which rise the infer- direct, objective solved the introduction of rejection solely ence that his was based on concerning evidence the disabled handicap; his individual abilities to the essential 2) plaintiff Once a prima establishes his job functions of the without reasonable ac case, defendants have the burden of commodation, or whether a ac reasonable facie going proving plaintiff forward and possible. Finally, equally commodation is qualified was not an otherwise handi- important sought to note is that the fact capped person, that is one who is able to through application be extracted of the program’s meet all requirements of the in framework, i.e., Douglas McDonnell whether spite handicap, rejection of his race, that his employer gen based its decision on (in program cases), was for reasons other der Title VII status (in handicap; cases), than his already discrimination decision, at- and instead employer its in which cases established shows) ground (or its decision on the tempts to defend reliance direct evidence admits qualified plaintiff is not otherwise disability. employee’s with or without reasonable position, recently recognized this Tenth Circuit accommodation.7 F.3d Corp., Int’l v. York problem White Cir.1995). the Pushkin test has recited This Circuit The court n. 6 analyzing during the course of at least twice stated: Act. the Rehabilitation See a claim under Pushkin, analysis in developed an We Adams, Harris v. ap- test much like the McDonnell Cir.1989); In Jasany, 755 F.2d at 1249 n.5. cases, in order to plicable in Title VII ultimately although held that the Jasany, elusive factu- inquiry into the “sharpen the “handicapped” within the plaintiff was not discrimination.” question al of intentional Act, we discussed meaning of Rehabilitation analysis, plaintiff our Pushkin Under burden-shifting ap- in dicta the Pushkin by showing ease his establishes approval. Jasany, 755 proach apparent with qualified handi- that he is “an otherwise However, we were con- F.2d at 1249 n. 5. handicap,” his capped person apart from illustrating why a primarily cerned rejected cir- that he had been and matter, must, an initial plaintiff as an inference give rise to cumstances “handicapped” within the solely his that he or she is rejection was based that his statute, analy- meaning and did not discuss Obviously, Pushkin disability. why in all eases. should bear application a defendant will not find sis here, readily plaintiff Where, showing ac- that the burden of position sought. qualified” to terminate for the knowledges that the decision “otherwise at least premised, Relying was on a Fifth Circuit case which Id. analysis, the ulti- employee’s Prewitt v. part, adopted on the also the Pushkin analysis Service, will of Pushkin purpose mate we stated: States Postal United from the outset. have been achieved to establish The burden is cases, objective presented claims such impairment that sub- of an the existence through application of be tested major activity as an stantially life limits proof.... traditional burdens plaintiffs prima facie case. element omitted). present- (citations Thus, prima facie case has been Once a the White Id. ed, em- shifts to the defendant the burden the Pushkin-modiñed recognized that court challenged demonstrate that the applica- ployer to Douglas approach is not required by and are related taking the criteria employer admits when the ble ac- necessity, and that reasonable making business handicap into account employee’s justified. was that reliance tion became whether the Pushkin White characterized 7. The court in contrary, concluded to the The court found plaintiff claimed that which "the case as one in the evidence established denying University's reason for stated disability. despite Id. at 1387. his was program pre- psychiatry was a admission to its on his discrimination based text for unlawful record, we fail to see these facts in the With White, disability.” n. 6. Portions 45 F.3d at 361 shifting necessary why to conclude perhaps support opinion the Pushkin against the had discriminated that the defendants However, properly under- reading stood, the case. in violation reason of his in which the Pushkin was a case Act. The had estab- the Rehabilitation disabled; 2) 1) discrimination. direct evidence of introduced Indeed, that he was that he was lished: ample disability; evidence established qualified despite in Pushkin *9 solely on the rejected application committee relied the admissions his defendants making plaintiff de- plaintiff's disability disability. its admissions the had in Because basis of his Pushkin, qualified In admission 658 F.2d at 1387-88. he was for termination. established that view, justifi- disputed despite in Pushkin was and the defendants' the issue his our qualified concluding to was based on his plaintiff otherwise otherwise whether the was cation for disability, residency had no reason other the defendants perform functions of the the essential justify- disability rely plaintiff's to on in disability. despite Once the court found than the ing Accordingly, the admissions decision. admissions their established that the direct evidence solely on one based disability decision became plaintiff's in committee's relied on the committee determination, disability. plaintiff's ques- the the making its admissions possible. analysis If plain- apply commodation is not the should to all case, tiff a it discrimination claims. fails to establish is unnecessary question to address the that, although It is clear then this Circuit reasonable accommodation. analysis has relied Pushkin to state the cases, disability in be used discrimination we (citation omitted). at 306-08 A 662 F.2d independently have not examined whether quote reading careful of this reveals that the every appropriate the test is warranted or in panel clearly attempting not have been could case. We believe that it is not. As the general disability for all to set forth a rule White, Tenth in Circuit noted the test cases, only discrimination and instead was inappropriate employ- for cases in which the pointing a out that defendant bears no bur- acknowledges upon plain- er that it relied the proof plaintiff if production den of handicap making employment tiffs in its de- disabled, cannot that he or she is a White, cision. 45 F.3d at 361 n. 6. The proposition entirely agree. with which we Douglas shifting ap- McDonnell burden disability many in discrimination proach unnecessary because the issue of eases, plaintiff challenge par- not does intent, employer’s the issue which job requirement ticular or seek reasonable designed, was has been employer, from the accommodation eases, admitted the defendant in such and Further, inapplicable. would render this test has direct evidence of discrimi- many in cases the disclaims reli- disability. nation on the basis of his or her making ance on the in its Assuming in such case is decision, adverse and whether “disabled,” in statutorily fact the determina- particular job criterion is essential or the disputed tive in issue the case will not be the employee reasonably can be accommodated “intent,” employer’s but instead in most Obviously, panel is not at issue. did not employee cases will be whether the is “other- govern all intend its discussion qualified,” wise with or without reasonable that, Finally, discrimination cases. we note accommodation, perform job, a factual although approach we discussed the Pushkin dispute capable through of resolution tradi- Jasany, expressly in a in footnote we never proof. tional methods of adopted burden-shifting test articulated Turning to cases in which the therein. Id. employee’s disability relies on the in its deci- Adams, In Harris v. 873 F.2d sionmaking, disputed issue will almost Cir.1989), again we recited the two first always employee be whether the is “other prongs giving of the Pushkin test when qualified” job. perform wise See Nor “cursory plaintiffs disability review” to the Sneed, cross v. 755 F.2d 116-17 discrimination claim. As was the ease in Cir.1985); Univ., Doe v. New York Jasany, ultimately held that the (2d Cir.1981). 761, 776 These cases fall into had not established that he was 1) disabled categories: two broad those in which the statute, meaning reject- within the of the seeking is not a reasonable accom ground. Alternatively, ed his claim on this making straight modation but is instead produced we noted that had forward claim that he or she can in fact employer’s evidence to rebut his claim capably sought function after plaintiffs application rejected exists; as it plain those which the disability. reasons unrelated to his challenges particular job tiff requirement Again, we did not examine the merits of the as unessential or claims he or she can do (modified) shifting analysis adopted with reasonable accommodations on Pushkin, part nor did we employer.8 determine whether of the cases which distinguished 8. Some analytically. courts have cases in which The claims indeed differ As a matter, however, employee particular job require- practical claims that a these are virtu- cases case, satisfactory job perfor- ally indistinguishable. is not plain- ment essential for In either establishing mance from those in which an seeks tiff will have the burden of that he or reasonable accommodation she is otherwise the essen- *10 See, Prewitt, employer. e.g., job, challenged 662 F.2d at 307-08. tial functions of the absent the direct, objective claiming qualified through to evidence. The is to be the job a provides with Disabilities Act perform functions of the Americans the essential accommodation, guide determining proof in and the the burden of without reasonable 12112(b)(5)(A) employee’s eases. employer’s defense is that the these U.S.C. employer satisfactory job perfor- that an has “discriminated” handicap precludes states mance, by: to es- a disabled objective evidence will suffice individual namely question; fact in whether tablish the making to not reasonable accommodations him or her the renders employee’s physical of the known or mental limitations the functions unqualified perform to essential qualified a an otherwise individual with immediately appar- job. of There is no the employee, an applicant who is employer ent to shift the burden to the need entity unless such covered can demon- the in cases on the issue of whether such im- strate that the accommodation would employee perform can the functions essential operation of pose hardship an undue on the disputed question job, and the factual of the entity. the business of such covered through can traditional methods be resolved provision language of this it clear The makes proof.9 of employer persua has of that the the burden is an would In cases which the sion on whether accommodation However, the impose hardship. on the of an undue seeking some accommodation claiming and is that he or she disabled individual bears the initial burden of employer, the showing perform proposing to the essential an accommodation and would be job objectively reasonable that accommodation rea functions of the such is accommodation, disputed will be The Seventh has described the issues sonable. Circuit reasonable, initial employee’s on this issue whether such accommodation is impose showing “that the accommodation is reason whether such accommodation would of hardship upon employer, an in the sense both of efficacious and undue able and/or capable proportional costs.” performing is of to Vande Zande State whether the Admin., job suggested Dep’t with the accommoda Wisconsin even Cir.1995).10 tion, nothing in may Additionally, of which also be resolved each addition, job proposed ac- also established that or with the reasonable In has criteria employer The bears the bur- an decision commodation. then she suffered adverse proving particular job requirement disability. that a solely den of is her because of Because necessity, or that a justify essential as business employer rely has no reason left to on to proposed imposes undue accommodation employee’s decision other than the its employer. hardship upon the employer's sole- decision becomes one based ly plaintiff's disabled status. on only disputed simple case in which the quali- issue is whether the fied, is otherwise interrelationship the terms "rea- 10. The between accommodation, perform to without hardship” and “undue sonable” accommodation job, of this functions of the resolution essential case-specif- perhaps complex. In a is somewhat dispositive. example, suppose a For issue is context, virtually mutually the terms are exclu- ic suit, brings claiming she individual disabled hardship” defines sive in the sense "undue job perform of the the essential functions can employer will be re- accommodations an employer. The accommodation from the without adopt. quired employer If an shows that hand, employer, the other asserts imposes undue proposed accommodation perfor- plaintiffs handicap precludes satisfactoiy hardship, then it would be “unreasonable” job employer, essential mance of functions. employer adopt accommoda- require this case, hypothetical admitted reliance has tion, employer, regardless whether another disability, although has context, required factual be different plaintiff’s disabled sole reliance admitted broadly, adopt More that same accommodation. Instead, claims that status. view, however, terms In our can co-exist. plaintiff's disability precludes him or her from determining proposed whether accommodation satisfactorily performing the essential functions requires determination “reasonable" a factual disputed job. resolution through (perhaps a cost-benefit of reasonableness plaintiff's ability of the to do factual issue analysis accommodations or examination of the required two elements to establish will resolve employers) untethered other undertaken plaintiff’s claim discrimination employer's particularized situa- the defendant she If the establishes that such a case. pro- made that Once a determination is functions tion. able to the essential in fact sense, is, "generally” posed in a job, is satisfied. accommodation that element of her claim *11 individuals, the statute alters the burden the disabled disabled im- believe its clear establishing individual that bears he or she port employers dictates that bear the burden capable performing is the essential func- proving challenged job that a requirement job proposed tions of the with the accommo- job-related. however, again, is We note that simply, employer dation. Put if the claims the disabled individual retains the burden of proposed impose that a accommodation will proving qualified perform he she is hardship, employer an undue the prove must job the essential functions the absent the employer that fact. If the claims instead challenged job requirement. unquali- that the disabled individual would be Distinguishing between cases that in fied to the essential functions of the volve direct evidence job accommodation, of discrimination and proposed even with the those in prove the individual which the is not disabled must that he or able to job she would fact be if introduce direct the evidence is vital because the employer adopt proposed were to analyzing framework for the two kinds of accommodation. Norcross, cases differs. See 755 F.2d at 116- noted, already 17. As we have when the Similarly, if a disabled individual is plaintiff has direct evidence of discrimination challenging particular job requirement as disability, based on his or her there is no unessential, employer will bear the bur Douglas type need for McDonnell proving challenged den of criterion proof shift and traditional 12112(b)(6) burdens of will necessary. § is pro U.S.C. course, apply. above, explained Of guidance provision vides on this That issue. expressly places upon employer of the statute that an statute employer states dis meaning proving criminates within the the burden particular job of the statute that a by: requirement job-related, particu or that a lar reasonable accommodation is an

using qualification standards, undue Nonetheless, hardship. tests or other selection criteria that disabled individ screen always out ual bears proving or tend to screen out an the burden of individual with or a he or qualified” class of individuals with she is “otherwise for the standard, disabilities position unless the test or in question, oth- challenged absent criteria, er selection as used the cov- proposed function or with the accommo entity, job-related ered is shown to be dation. A burden-shift question and is consistent will, ing type analysis however, appropri be necessity. with business ate some discrimination cases. cases in which the no has direct language This employer indicates that an employer evidence of discrimination and the proving particular bears the burden of that a disclaims hiring policy “job-related” reliance on the and “consistent plaintiff may attempt necessity.” Although business to establish this sec- his or tion of expressly only indirectly through the statute her claim concerns the burden shift standards, qualification testing procedures, ing method Doug borrowed from McDonnell and selection criteria that tend to screen out establishing las case of reasonable, employer Hall, hardship. defendant then bears undue 532 N.W.2d at 896. See showing burden, burden of employer the accommodation Once the satisfies this the em- it, imposes hardship upon given an undue ployee persuading bears the ultimate burden of employer's specific situation. Viewed in this proposed the trier of fact that the accommoda- way, parties’ respective persua- burdens of impose hardship tion would not upon an undue sion become clear. The bears the initial employer. contrary express Id. This is to the showing burden of that a "reasonable” accom- Act, language of the Americans with Disabilities so, possible. modation is If the does clearly places upon the bur- opportunity per- defendant has an establishing proposed den of that a accommoda- proposed suade the fact finder that the accom- impose hardship. tion would an undue imposes hardship. modation an undue 12112(b)(5)(A). However, § given U.S.C. our that, Michigan propose We note also conclusion Monette has failed to under the disabili- statute, 3.550(210)(1), ty M.S.A. "reasonable" accommodation defendant under the federal statute, only producing

bears the burden of evidence that his claim also fails under the state stat- proposed impose accommodation would ute. *12 case, shifting the burden to the cie the burden shifts to the defendant discrimination legitimate, employer legitimate, to offer a nondiscrimi- to articulate some nondiscrimi- natory natory action. employee’s rejec- reason for its reason for the matter, however, practical tion.” .... As a say must a word about what We trial, sequence and in the real-life aof the ” by “prima normally phrase the meant facie defendant feels the “burden” not when the case, at least as it is used the context of plaintiffs prima proved, facie case is but as Douglas burden-shifting for the McDonnell it soon as evidence of is introduced. The context, facie," mula. “Prima as used in this defendant then knows its failure to facts, represents each of a certain set of nondiscriminatory introduce of a evidence objective by evidence which are established judgment go against reason will cause it proof, traditional burdens of plaintiffs prima unless the facie ease is presume will the exis which the fact finder inadequate held to be as a matter of law or fact, proof of another absent to the tence fails to convince the fact finder. It is this cases, contrary. presumed Title VII practical coercion which causes the course, fact the defendant’s “intent” to is of Douglas presumption McDonnell to func- “Thus, against plaintiff. discriminate the “arranging presen- tion as a means of Douglas presumption places McDonnell tation of evidence.” producing upon the defendant the burden of explanation prima to rebut facie Id. at 510 n. 113 at n. S.Ct. 2748 3. As this i.e., ‘producing the burden of evidence’ quotation explains, analytically the “burden- case — employment the adverse actions were by prima shift” created case does facie legitimate, nondiscriminatory taken ‘for a plaintiff not occur unless the establishes the Hicks, 506-07, 509 at 113 reason’.” prima by pre- elements case a facie Burdine, (quoting at 2747 450 U.S. at S.Ct. ponderance plaintiff If the evidence. 1094). 254, 101 at S.Ct. predicate necessary fails to establish a fact intent, presumption create the of unlawful Supreme recently Court ex technically the “burden” never shifts to the plained prima of a facie case—and the effect defendant. employer’s production burden of in re buttal —in Hicks: mind, With these comments in prima

If of fact ... finds that the we believe a establish a the finder supported by prepon- by prima facie case is case of discrimination facie 1) disabled, showing derance of the it must find the that: he or she see evidence^] 2) 1249-50, Jasany, presumed existence of the fact of unlawful 755 F.2d at is otherwise must, therefore, job, qualified for the with or without “reason discrimination and render White, accommodation, a verdict for the the defendant able” see [if 3) Thus, production].... employment n. an adverse fails its burden of suffered decision, Hicks, 506-08, failing produce the effect of evidence to see 509 U.S. at 4) pre- ... had rebut the McDonnell S.Ct. at knew or sumption prima until the of his or her see is not felt reason know established, 448; rejec Morisky, as a mat- 80 F.3d at after case has been either (because plaintiffs ter of law facts are tion or termination the remained uncontested) by open, replaced, individual was the fact finder’s deter- the disabled Douglas, 411 sup- mination that the facts are U.S. at cf. facts, in ported by preponderance at 1824. Proof of these five of the evidence. S.Ct. technically explanation employ It is thus accurate to describe the absence of an er, “First, mandatory sequence inference that the as we did Burdine: creates proving by employer intentionally discriminated has the burden of by taking preponderance prima individual an adverse evidence the disabled Second, “solely” if the action because of his or facie case of discrimination. proving handicap.11 fa- If the offers succeeds her essarily replaced that he or she was 11. We do not believe that the need nec- essential, legitimate for its action that reason is unre- and therefore a business necessi- employee’s disability, plain- ty, proposed lated to the or that a will accommodation establishing impose hardship upon tiff will bear undue the em- proffered pretext ployer.12 reason is a for unlawful *13 discrimination. plaintiff If the seeks to his or her up, plaintiff if To sum the has indirectly, proof case without direct dis- employer direct evidence that the on relied crimination, plaintiff may pri- establish a disability making his or her an adverse by showing ma case of discrimination facie decision, employment employer or if the ad 1) 2) disabled; that: he or she is otherwise handicap: mits reliance on the qualified position, for the with or without 1) plaintiff The bears the burden of estab- 3) accommodation; reasonable suffered an lishing that he or she is “disabled.” 4) decision; employ- adverse 2) The bears estab- plain- er knew or had reason to know of the

lishing quali- 5) that he or she is “otherwise disability; position tiffs remained position despite fied” for his or her open employer while sought appli- other a) disability: from without accommodation cants or the disabled individual was re- b) employer; alleged with an “essen- placed.13 The defendant must then offer a c) job eliminated; requirement tial” legitimate explanation for its action. If the proposed with a reasonable accommoda- production, defendant satisfies this burden of tion. showing must introduce evidence employer proffered The explanation pretextual. 'will bear the burden of that the proving challenged job scheme, criterion is Under retains the person protected outside the class as an ele dation. If the establishes that a reason- prima possible, ment of his or her employer case. The Ameri able accommodation is facie prohibits proving cans with Disabilities Act discrimina bears the burden of that such reasonable against tion impose disabled individuals "because of the accommodation would an undue hard- Airlines, disability Inc., ship. of such individual.” 42 U.S.C. See Benson v. Northwest 62 12112(a). race, Cir.1995). § gender Eighth Unlike traits such as F.3d 1112 Cir- among pro approach which are slightly uniform members of the cuit’s in Benson differs from class, Benson, tected disabilities are diverse. Given the the test set forth here. In the court held that, unique employee somewhat abilities, showing characteristics of various dis if an makes a facial possible, and the differences between individuals a reasonable accommodation is the em- particular disability, replacement ployer afflicted showing bears the burden of employee perform of one disabled individual with another disabled cannot the essential functions necessarily proposed individual does not weaken the infer of the even with the reasonable against ence of discrimination agree the former indi We accommodation. Id. do not through employer vidual that arises employer establishment of the bears this burden. The will O'Connor, predicate five establishing proposed facts set forth above. bear burden of that a Cf. at -, 1310; imposes 116 S.Ct. at see also reasonable accommodation an undue - Prewitt, (noting hardship, 662 F.2d at 307 requir- that the fact that but there is no reason for also employer par ing employer hires several employee individuals with to show that the probative unqualified position ticular is not pro- whether that for the even with the employer per posed has discriminated a blind accommodation. We believe the disabled son). Supreme explained always as the Court proving individual bears the burden of Douglas, necessary qualified "[t]he facts will that he or she is the essen- vary specification prima ... and job, ... of the proposed tial functions of the even with the required proof respondent facie is not nec accommodation. essarily applicable every respect differing factual situations.” 411 U.S. at 802 n. 13. At least two have courts held that a Accordingly, precise S.Ct. at 1824 n. 13. must show that his or her had "actual prong characterization of the fifth of the will test knowledge or constructive” vary depending upon sometimes the factual sce prima aof Americans with Disabilities facie confronting nario the court. Morisky County, Act claim. 445, v. Broward 80 F.3d (11th Cir.1996); Hedberg v. Indiana Bell Co., Inc., 928, 932, 12. When the seeks a reasonable ac- Tel. Cir. commodation, 1995). she must establish that a "reason- This Circuit has also reached this conclu possible, able" accommodation is bears sion in a similar context in a Rehabilitation Act proof Hosp., traditional burden of that she is case. v. Marion General Landefeld position for the with such reasonable accommo- F.2d 1181-82. accommodation, persuasion at all times. to transfer a ultimate burden disabled em- Hicks, 506-11, at ployee position 509 U.S. to a vacant See which he or qualified, employers duty 2747-49. she is are under no employees keep unpaid leave indefinite- turn the merits of Monette’s We now to ly position opens up. until such 42 U.S.C. as- arguments appeal. The district court Cf. 12111(9)(A)-(B) (defining ac- “reasonable of Mon- sumed as established elements “job restructuring, commodation” to include case and held that Monette ette’s schedules, part-time or modified work [and] Sys- that Electronic Data had failed show position”) reassignment (empha- vacant proffered reasons for its action were tems’ added). If, perhaps, sis knows pretextual, apparently analyzing case un- appli- that a which the disabled Douglas type a McDonnell framework. der *14 qualified vacant cant is will become in a short approach we to be believe time, period the employer required be inappropriate on the facts this case. The position employee. to offer the to the See explanation for the decision to defendant’s pt. app. (giving C.F.R. at 407-08 an replace was that Monette was on Monette example in which an situation leave, perform to medical unable particular position that a knows will become circumstances, that, and because under week). However, within a employers vacant only representative was one customer service simply required keep not an employee are building, replace in employed need to indefinitely hope on staff that some properly, was all of urgent. Monette Viewed position may become available time in some handi- these reasons are related Monette’s Moreover, employers future. are not words, In own cap. other defendant’s required positions to create for new disabled explanation action that it for its established reasonably employees in order to accommo- replace on disabled relied Monette’s status date the disabled individual. See Fedro him.14 (7th Cir.1994). Reno, 1394-95 however, say, is not to that This Accordingly, has failed to Monette improperly the district court awarded sum proposed that his accommodation a “rea- mary judgment to the defendant. Under statute. sonable” one above, approach required Monette outlined qualified explicitly that to show he is otherwise Monette does not offer an job, possible other accommodation as an alterna essential functions tive, although he with or without a reasonable accommodation makes somewhat half defendant, replaced from the and Monette bears the hearted claim that the defendant establishing quickly.” view initial burden of that the accom him “rather We this as a have modation he is “reasonable.” Monette claim that the defendant could “reason seeks (which proposes possible ably” leaving as a Monette his accommodation accommodated reasonable) requirement position open perhaps filling temporari or it he claims is that fail. The kept ly. the defendant have him on un This claim must also defendant should indefinitely only another one paid medical leave until offered uncontradicted evidence representative reception representative service worked in customer service customer opened up. building, adequately explained and position ist While it is true Monette’s required, repre- to have employers may be as a reasonable the need a customer service Consider, Rather, example, disability. in which to Monette’s Monette's for situation lated egregious (which had disability Monette suffered somewhat less him unable to work rendered injury, permanently and to work- time) he was limited replaced, although is he is full reason Suppose ing per day. four he worked four hours explanation its the defendant has couched month, per day which hours for one the end of job performance. Properly terms of Monette’s replaced him him defendants terminated dispositive analyzed, hypotheti- issue in this Suppose employee. a new also quali- is whether Monette is “otherwise cal case justifies ground defendant decision on the its despite disability his with a reasonable ac- fied” representative a full-time service was customer (for example, commodation from needed, only up showing and Monette was might another time em- the defendant hire days, unacceptable for the work half situation shift). ployee to work the afternoon justification unre- defendant. This would not be sum, genuine sentative available. No issue of fact propose Monette failed to a “rea- as to the respect exists defendant’s need to have sonable” accommodation with to his rep- someone take over the claim that kept customer service defendant should have position light unpaid position resentative leave until a Monette’s ab- Further, sence. because the defendant Monette was became had vacant. way when, if, knowing Additionally, no Monette has even Monette failed to create a work, genuine entirely regarding would return to think it issue of material fact explanation keeping reasonable that defendant’s per- po- Monette’s manently open open-ended filled his absence. sition while Monette nev- Monette was on expressed work, er impose desire to return to leave would undue hard- applied permanent ship. in fact Accordingly, appro- the district bene- court priately returning summary judgment fits before to work awarded unannounced. facts, hardly On these the defendant can claim. be Monette’s assuming blamed for that Monette would We turn now to the district court’s job. returning be to his old refusal to allow Monette to file a second complaint. amended parties do not Finally, that, Monette relies on evidence agree appropriate standard of review occasions, on two other the defendant held an disagreement on this apparently issue. This job open individual’s *15 while the individual was stems from grounds some confusion as to the facts, according medical leave. These upon which deny the district court relied in Monette, indicate that the defendants dis- ing Monette’s motion to file the amended against affording criminated him not complaint. Normally, we review a district Viewing similar treatment. these facts as court’s denial of leave to an file amended evidence that the defendant could have rea- complaint an under abuse of discretion stan sonably by holding accommodated Monette Properties dard. LRL Portage Metro position open, already we explained have Auth., (6th 1097, Hous. 55 F.3d Cir. why argument unpersuasive we find this as it 1995). However, where the district court’s pertains to Monette’s rep- customer service conclusion as to whether to allow an amend position. resentative We note also that the complaint legal ed rests on a conclusion that upon two occasions which Monette relies are complaint the amended would not withstand instance, not similar to his own. In one an a motion to dismiss under Fed.R.Civ.P. attack, employee suffered a heart and was on 12(b)(6),our review is de novo. leave for three management months from a position dissimilar to immediately Monette’s customer It is apparent not whether the representative position. other, service In the district court denied leave to file the amend- termination, which occurred after complaint Monette’s ed ground on the that it was un- required by filed, the defendant timely was law hold or whether the district court Family employee’s position open. See relied on its that complaint belief Act, and Medical Leave 29 U.S.C. amended could not withstand motion to 2612(a)(1)(D) § (requiring employee However, to fur- dismiss. because the bulk of the employee nish with twelve opinion weeks of leave district explains court’s it did during any period twelve-month if the em- not believe complaint Monette’s amended ployee’s health requires). condition so dismiss, Nei- would withstand motion to we ther of these incidents creates an inference review the district court’s decision de novo. against Lines, the defendant discriminated Martin v. Associated Truck 801 F.2d (6th Arguably, Cir.1986). Monette. one op- could draw the considering When posite inference, namely that the defendant whether a claim should be dismissed under regularly attempted 12(b)(6), tempo- accommodate accept we must all as true factual rarily employees possible. disabled allegations whenever complaint, deny in the and must However, we need not draw an inference the motion to dismiss it unless can be estab- way. explained, either As we beyond have neither of lished a doubt that the can employees similarly the these prove were support situated no set of facts in of his claim to Monette. Nishiyama for relief. County, v. Dickson Cir.1987) (citations Thus, leave to file Id. at 814 F.2d omitted). given if not be seeks need complaint delay, or if after undue amend complaint to sought to amend his Monette un allowing the amendment would work an discharge under retaliatory a claim for assert Priddy v. prejudice on the defendant. due 418.301(11), pro- Comp. Laws Mich. Edelman, 446-47 Cir. vides: 1989). However, no court made district discharge employee an person A shall unduly finding would amendment in manner discriminate did Systems. Electronic Data Nor prejudice employee filed because the “dilatory court find evidence of a the district complaint proceeding or instituted a Accordingly, cannot affirm motive.” by the act or because the exercise ground that Monette’s district court or herself employee on behalf himself complaint for leave to motion file amended act. right by this of a afforded others untimely. Monette’s facts as Taking the stated is AF- judgment of district court true, complaint as we believe amended PART, IN FIRMED IN and REVERSED allow him refusing erred court district PART, and the case is REMANDED It be complaint. amended to file an opinion. proceedings accordance with this be to withstand that Monette will unable claim, summary on this judgment motion LIVELY, concurring. Judge, Circuit discovery have parties taken after complaint should because issue. ma- I in the result reached concur only for failure to a claim dismissed state be join opinion. jority, do not in the entire but beyond appears “it a doubt where view, my clearly the record shows support prove no plaintiff can set of facts ultimately off termi- laid Monette EDS *16 re him to claim would entitle of his This, disability. nated because 45-46, Gibson, lief,” Conley 78 355 U.S. then, no was direct evidence and discussion (1957); 99, 102, Nishiya 2 L.Ed.2d 80 S.Ct. plain- proof required of the burden when ma, court’s F.2d the district by that evidence tiff seeks to show indirect amend his com of Monette’s motion to denial employer’s adverse action the reason for reversed. plaint must be having handicap. was his Further, if we to view the dis- even were by that he was termi- direct evidence shown holding as court’s order this issue trict of his he was still because nated motion to file Monette’s for leave required to show he was “otherwise complaint untimely, the court amended Although ample had qualified.” inquire failing to into its discretion abused that he was oth- opportunity to demonstrate allowing the would amendment whether that he qualified, record reveals erwise prejudice to the defendant. Furthermore, cause undue agree I so. failed to do Davis, Foman v. 37-day paid period represented a reason- (1962), ex- Supreme accommodation, Court L.Ed.2d the district able determining general standard for plained denying motion court erred permitted to party should be whether complaint. amended to file an complaint: amend a or declared apparent

In the absence faith, delay, bad

reason —such undue movant,

dilatory motive on of the

repeated failure to cure deficiencies allowed, undue previously

amendments by virtue opposing party to the

prejudice amendment, futility of allowance

amendment, should, as the etc.—the leave require, “freely given.” be

rules