Katherina Swank v. CareSource Mgmt. Group , 657 F. App'x 458 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0484n.06
No. 15-4193 FILED
Aug 17, 2016
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KATHERINA SWANK, )
)
Plaintiff-Appellant, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
CARESOURCE MANAGEMENT GROUP )
NORTHERN DISTRICT OF
CORPORATION, )
OHIO
)
Defendant-Appellee. )
BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.
ROGERS, Circuit Judge. Katherina Swank appeals the district court’s entry of summary
judgment in favor of her former employer, CareSource Management Group, Co., on her
Americans with Disabilities Act and state-law discrimination claims. Swank is a registered nurse
and has rheumatoid arthritis. In 2011, CareSource eliminated her existing position and offered
her a new position as a RN Case Manager-High Risk (“CMHR”). The new CMHR position
involved driving to conduct face-to-face visits with CareSource clients. Believing that Swank
was unable to conduct these face-to-face visits due to her rheumatoid arthritis, CareSource
terminated Swank.
On appeal, Swank argues that the district court erred by holding that she had failed to
establish a genuine issue of fact about whether she could perform the CMHR position without
No. 15-4193, Swank v. CareSource Management Group Co.
accommodation. This argument is unavailing because the undisputed facts establish that Swank
needed accommodation to perform the CMHR position.
Swank also argues that the district court erred in holding that there were no genuine
issues of fact about whether (1) driving was an essential function of the CMHR position;
(2) there were alternative positions to which Swank should have been reassigned; and
(3) CareSource engaged in a good-faith interactive process with her. The undisputed facts
establish that driving was an essential function of the CMHR position and that CareSource had
no open alternative positions to which Swank could have been reassigned. Further, because
Swank did not propose a reasonable accommodation to address her stated driving limitations, her
interactive-process claim fails as a matter of law. These remaining arguments therefore do not
provide a basis for relief.
I.
CareSource is an organization that provides managed healthcare services to Medicaid
recipients who are enrolled with CareSource (i.e., CareSource members). Swank is a registered
nurse (“RN”) who lives in Kent, Ohio. In 2007, CareSource hired Swank to work as a case
manager in its Warrensville Heights office. As a case manager, Swank worked with CareSource
members and healthcare providers to conduct healthcare assessments of the members and to
assist the members with a variety of health issues. At this time, Swank conducted her case
manager duties entirely by telephone.
At some time between 2008 and 2009, Swank was diagnosed with rheumatoid arthritis.
Due to her arthritis, Swank had intermittent difficulty walking, lifting heavy items, and driving.
She also became more susceptible to illness due to a weakened immune system. In 2008, Swank
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applied to work from home as a case management teleworker because she was having difficulty
driving. In October 2009, CareSource began permitting Swank to work from home.
In 2011, CareSource began exploring a new approach to its delivery of managed care
services to the Ohio Department of Job and Family Services (“ODJFS. CareSource had entered
into an agreement with ODFJS to provide managed healthcare services to Medicaid recipients in
Ohio. ODJFS mandated that CareSource change its healthcare plans so that CareSource could
begin following a high-touch, community-based model. ODJFS also mandated that CareSource
employees meet face-to-face with certain high risk members on at least a quarterly basis.
As a result of ODJFS’s mandate, CareSource eliminated all case manager positions as
they previously existed, and created a new position called RN Case Manager – High Risk. The
CMHR was an RN who was the primary point of contact for CareSource members and was
ultimately responsible for setting up the assessment of each member’s care-treatment plan.
CMHRs were supervised by team leaders and were assigned to teams that included social
workers, patient navigators, and licensed practical nurses (“LPNs”).
The CMHR was responsible for working with her team to set up face-to-face visits with
members. A CMHR could delegate some of these face-to-face visits to social workers, patient
navigators, and other CareSource employees on her team. However, when the visit involved a
“duty that was within the scope of an RN license,” the CMHR was required to conduct the face-
to-face visit herself. The CMHR used her professional, clinical judgment to determine if a
member needed to be visited by an RN.
In November 2011, CareSource employees Sheila Putman and Christi Goldshot told
Swank that CareSource was going to offer her a CMHR position. Swank told Putman and
Goldshot that she had concerns about traveling to conduct face-to-face visits with members due
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to her driving and autoimmune issues. Swank testified that Putman and Goldshot suggested that
Swank request leave under the Family and Medical Leave Act for the days that Swank could not
drive to conduct a face-to-face visit with a member, and CareSource could assign someone else
to conduct the visit. Swank also testified that Putman and Goldshot said that they would provide
her with a protective mask to address her autoimmune-system issues.
On November 14, 2011, Swank sent a letter to Pamela Tropiano, CareSource’s Senior
Vice President of Health Services, stating that the CMHR position “would be hazardous
considering [her] current health condition,” Swank explained that since her “immune system
[was] compromised . . . [s]ending [her] . . . into an environment where [she would be] in contact
with highest risk patients would be detrimental to [her] health.”
In December 2011, Goldshot and Putman met with Swank and showed her an offer letter
for the CMHR position. Swank again expressed concerns about the driving portion of the
position and “wanted to see if [CareSource] would assign [her] patients closer to [her] area.”
Swank testified that she told Goldshot and Putman that she “would be able to perform all the
driving as long as [she] didn’t have to drive as long a distance.” In response to Swank’s
concerns about driving, Goldshot and Putman suggested that Swank make a formal request for
accommodation. They also told Swank that CareSource would waive the driving requirements
of the CMHR position while CareSource determined whether it could provide a reasonable
accommodation for her.
The next day, Swank requested an application for an accommodation from Jane Casson, a
Senior Benefits Analyst for CareSource. This application consisted of a copy of the CMHR job
description and two questionnaires: one to be completed by Swank and one to be completed by
her treating physician. In her questionnaire, Swank checked “yes” in response to CareSource’s
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question about whether she believed that she “need[ed] a reasonable accommodation in order to
be able to perform the essential functions of [her] position.” She also stated that she was
“[u]nable to tolerate being exposed to changes in weather conditions” and “[u]nable to sit / stand
for long periods of time.” In response to CareSource’s request to “describe the reasonable
accommodation” that she was seeking, Swank stated that she “[o]riginally requested [an] open
position on [November 3, 2011] that would enable [her] to stay gainfully employed. Meeting
was with [m]anagement team and [she] made them aware of [her] concerns and hesitation to
accept” the CMHR position.
In her questionnaire, Swank’s physician, Nikita Hegde, stated that Swank would have
“difficulty” performing some of the tasks and duties listed in the CMHR job description. Hegde
also stated that during acute flare-ups of her rheumatoid arthritis, Swank’s medical condition
would preclude her from traveling to and from work and from being at work. Hegde stated that
she was not aware of any accommodations that would address Swank’s limitations.
Between late January and May of 2012, Swank had at least ten discussions with Casson
about her request for a reasonable accommodation. Swank testified that she told Casson during
these discussions that she would have “driven anywhere in [N]ortheast Ohio in connection with
[the CMHR] job.”
In February 2012, Swank learned that an onsite CMHR position at CareSource’s Metro
Broadway clinic was available. Swank asked her then-manager, Lynn Wertheim, if she should
apply for this position. Wertheim questioned whether Swank would be able to drive to the Metro
Broadway clinic every day and advised her to wait and see if her accommodation request was
granted. Swank ultimately decided not to apply for this position.
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Sometime in April 2012, Valerie Scarfpin, CareSource’s Director of Human Resources,
called Swank and outlined the essential functions of the CMHR position. Swank told Scarfpin
that she could not perform the essential functions of the position with or without an
accommodation. Scarfpin told Swank that CareSource had no other available position for which
she was qualified and that CareSource was going to terminate her.
On May 21, 2012, Scarfpin called Swank again. Swank again answered “no” when
Scarfpin asked her if she could perform the CMHR job duties and responsibilities with or
without an accommodation. Scarfpin then told Swank that she had been terminated.
In 2013, Swank filed suit against CareSource in federal district court, alleging a claim of
disability discrimination under the Americans with Disabilities Act, and related state-law
claims.1 CareSource moved for summary judgment on all of Swank’s claims.
The district court granted CareSource’s motion for summary judgment. 2015 WL
5853748, at *8. The district court reasoned that since the parties had argued their positions
assuming that Swank was “disabled” for the purposes of the ADA, the court would also assume
that Swank was disabled. Id. at *3. The district court then considered whether Swank could
meet her burden of establishing that she was “otherwise qualified” for the CMHR position
“without accommodation from [her] employer, with an alleged ‘essential’ job requirement
eliminated, or with a proposed reasonable accommodation.” Id. The district court concluded
that the undisputed facts established that Swank could not perform as a CMHR without an
accommodation. Id. at *3−4. The district court explained that in Swank’s opposition to
CareSource’s motion for summary judgment, she had argued that she was “disabled but could
have performed the job with an accommodation.” Id. at *4. The district court also noted that
1
Swank also alleged a claim for unlawful retaliation against CareSource, which the district court dismissed. Swank
v. CareSource Mgmt. Grp. Co., No. 1:13CV2048, 2015 WL 5853748, at *7−8 (N.D. Ohio. Sept., 30, 2015). Swank
does not appeal the district court’s dismissal of this claim. This claim is therefore not at issue in this appeal.
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Swank had submitted a request for accommodation from CareSource in which she stated that she
needed an accommodation in order to perform her job as a CMHR. Id. The district court
concluded that Swank’s argument that she could have performed as a CMHR without an
accommodation was therefore “disingenuous and unsupported by the undisputed facts in [the]
case.” Id. at *3.
The district court also held that driving was an essential function of the CMHR position,
and Swank could not establish that she was “otherwise qualified” for the CMHR position by
showing that she could perform the position with that alleged “essential” job requirement
eliminated. Id. at *4−5. In so holding, the district court explained that although the CMHR job
description did not list driving as an essential function of the position, the description did state
that driving was a physical requirement of the position. Id. at *4. The district court also noted
that Swank understood that she would have to conduct some face-to-face visits with members
and that CMHRs might have to be mobile up to fifty percent of the time. Id. at *4−5. In
addition, “the very substance of Swank’s argument [was] that she needed an accommodation
because driving and mobility were required and ‘essential’ [functions of] the CMHR position.”
Id. at *5. The district court therefore concluded that there was no genuine issue of fact about
whether driving was an essential function of the CMHR position. Id.
The district court also rejected Swank’s argument that CareSource discriminated against
her because it did not grant her accommodation request. Id. at *5−6. The district court held that
since an employer is not required to assign other employers to perform the essential job functions
of a disabled employee, CareSource was not required to assign other employees to assume
Swank’s driving duties. Id. at *5 (citing Bratten v. SSI Servs., Inc., 185 F.3d 625 (6th Cir.
1999)). The district court also explained that a “plaintiff may not rely on accommodations that
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he did not request.” Id. (quoting Manigan v. Sw. Ohio Reg’l Transit Auth., 385 F. App’x 472,
478 n.5 (6th Cir. 2010)). The district court concluded that because Swank did not ask to be
assigned members closer to her home in her written request for accommodation, CareSource was
not obligated to grant this request. Id. The district court also explained that even if CareSource
was obligated to grant this request, Swank testified that this accommodation would not have
addressed her concerns about long periods of car travel or exposure to changes in the weather.
Id. at *5−6.
The district court held that CareSource also did not engage in disability discrimination
when it failed to offer Swank an alternative position at other CareSource offices. Id. at *6.
CareSource’s “only other open telephonic positions were located at an office in Dayton.” Id.
The district court also noted that Swank did not argue that she was willing to relocate to Dayton
or that she was able “to make the long [commute] between [her home in N]ortheast Ohio and
Dayton.” Id. The district court therefore concluded that there was not a genuine issue of
material fact about whether CareSource discriminated against Swank when it failed to offer her
an alternative position. Id.
The district court noted that in her brief in opposition to CareSource’s motion for
summary judgment, Swank raised an independent claim that CareSource had failed to engage in
a good-faith interactive process. Id. at *8. However, because Swank had failed to allege this
claim in her complaint, the district court declined to consider this claim. Id.
The district court similarly granted summary judgment in favor of CareSource on
Swank’s Ohio-law employment discrimination claims, explaining that “courts may generally
apply federal precedent to employment-discrimination claims under Ohio law.” Id. (citing
Jakubowski v. The Christ Hosp., Inc., 627 F. 3d. 195, 201 (6th Cir. 2010)).
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II.
Swank failed to create a genuine issue of fact about whether she could perform as a
CMHR without accommodation.2 In order to establish a prima facie case of disability
discrimination in a direct-evidence case, a plaintiff must, in addition to establishing that he or she
is disabled, establish that he or she is “‘otherwise qualified’ for the position despite his or her
disability: (a) without accommodation from the employer; (b) with an alleged ‘essential’ job
requirement eliminated; or (c) with a proposed reasonable accommodation.” Kleiber v. Honda of
Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (citation omitted). The undisputed evidence
established that, at least during acute flare-ups of her rheumatoid arthritis, Swank was unable to
perform the CMHR position without accommodation.
The undisputed evidence established that at least during acute flare-ups of her rheumatoid
arthritis, Swank could not perform the CMHR position without accommodation. In response to
CareSource’s question about whether Swank’s medical condition “preclude[d] travel to and from
work,” Doctor Hegde answered “Yes—acute flares / [causes] difficulty driving. In response to
CareSource’s question about whether Swank’s medical condition precluded her from being at
work, Hegde answered “Yes, during acute flares.” Similarly, Swank testified that “[i]f [she] had
a flareup [she] would not be able to go” to face-to-face visits with members.
Swank argues that there is “nothing in the record” that demonstrates that she had acute
flare-ups. This argument fails. In response to CareSource’s question about whether Swank was
“likely to experience sudden or subtle incapacitation” due to her medical condition, Doctor
Hegde answered “yes, with flare ups.” Hegde therefore indicated to CareSource that Swank was
2
Although this was the lead argument in Swank’s brief, Swank’s counsel did not pursue the contention at oral
argument.
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likely to have acute flare-ups. Similarly, Swank testified that “[w]ith rheumatoid arthritis you
get flareups,” and that changes in the weather “could make [her] flare up.”
Swank also argues that her attendance record established that she could perform as a
CMHR without accommodation. This argument is unavailing. It is true that Swank had no
active requests for leave under the Family and Medical Leave Act and that she had only two
absences in 2011 However, during the entire time that she was employed by CareSource, Swank
was never required to conduct face-to-face visits with members. Accordingly, Swank’s
attendance record did not establish that she was able to conduct face-to-face visits with members
during acute flare-ups of her rheumatoid arthritis.
Swank further contends that the fact that she told CareSource employees that she was
able to drive to visit members creates a genuine issue of fact about whether she could perform
the CMHR position without accommodation. This argument is also unavailing. As stated above,
Swank stated in her deposition that “[if] [she] had a flareup [she] would not be able to” drive to
visit members. “A party may not create a factual issue by filing an affidavit, after a motion for
summary judgment has been made, which contradicts her earlier deposition testimony.” Reid v.
Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir. 1986) (citation omitted). Similarly, Swank
cannot create a genuine issue of fact by pointing to statements that she allegedly made to
CareSource employees that contradict her own deposition testimony.
CareSource contends that because Swank claims that she was mistakenly regarded as
disabled even though she could perform her job without accommodation, CareSource was not
required to provide a reasonable accommodation to her, allow her to perform the CMHR position
with the driving portions eliminated, or engage in a good-faith interactive process with her.
CareSource contends that we therefore do not need to consider Swank’s remaining arguments
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about whether (1) driving was an essential function of the CMHR job; (2) CareSource should
have transferred Swank an alternative position; and (3) CareSource engaged in a good-faith
interactive process. However, we assume that Swank had an actual disability and needed an
accommodation to perform the CMHR job because (1) CareSource did not challenge the district
court’s assumption that Swank had an actual disability and (2) Swank’s remaining arguments
were premised upon the assumption that she had an actual disability.
Turning to the merits of Swank’s remaining arguments, the district court properly
determined that the undisputed facts established that driving was an essential function of the
CMHR position. A plaintiff can establish the second element of his prima facie case by showing
that he is “otherwise qualified” for the position “with an alleged ‘essential’ job requirement
eliminated.” Kleiber, 485 F.3d at 869. “A job function may be considered essential because:
(1) the position exists to perform that function; (2) there are a limited number of employees
available among whom the performance of that job function can be distributed; or (3) the
function is highly specialized so that the incumbent in the position is hired for his or her
expertise or ability to perform the particular function.” Keith v. Cty. of Oakland, 703 F.3d 918,
925 (6th Cir. 2013) (citing 29 C.F.R. § 1630.2(n)(2)). “Factors to consider when determining
whether a job function is essential to the position include: (1) the employer’s judgment; (2) the
written job description; (3) the amount of time spent performing the function; (4) the
consequences of not requiring performance of the function; (5) the work experience of past
incumbents of the position; and (6) the current work experience of incumbents in similar jobs.”
Id. at 925−26 (citing 29 C.F.R. § 1630.2(n)(3)). The undisputed facts established that traveling
to conduct face-to-face visits with members was an essential function of the CMHR position.
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First, the written job description for the CMHR position indicated that traveling to
conduct face-to-face visits with members was a requirement of the CMHR position. Although
CareSource did not list traveling under the “Essential Functions” heading of the CMHR written
job description, it did include traveling under the “Work Environment/Physical Requirements”
section of the job description. In this section, CareSource stated that the CMHR was required to
“[p]erform reasonable travel related duties including member home visits, provider visits, and
community based visits as needed to ensure administration of the program.” By stating that a
CMHR was required to conduct face-to-face visits with members, CareSource indicated that
conducting these visits was an essential function of the position.
Second, CMHRs were hired for their abilities to conduct face-to-face visits with members
who had complex health needs. Although a CMHR could delegate some face-to-face member
visits to other employees on her team, the CMHR had to perform at least some of the face-to-
face member visits herself. This was because the CMHR was an RN, while the patient
navigators and social workers on her team were not RNs. Accordingly, when the visit involved a
“duty that was within the scope of an RN license,” the CMHR was required to conduct the face-
to-face visit herself. If a member was having a health or behavior crisis, the CMHR was
required to conduct face-to-face visits with the member. Because CareSource provided medical
services to members who were identified to be at a high risk for health concerns, these members
were likely to have complex medical or behavioral issues that an RN would have to address in
person. CMHRs were thus hired for their abilities as RNs to conduct face-to-face visits with
members who had complex health needs.
Third, there were a limited number of employees among whom the performance of
conducting these face-to-face visits could be distributed. As stated above, although the CMHR
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was an RN, the patient navigators and social workers on her team were not. In the event that a
CMHR could not travel to visit a member who needed to be visited by an RN, the CMHR’s team
leader had to perform the visit. Accordingly, the district court correctly concluded that the
undisputed evidence established that conducting face-to-face visits with members was an
essential function of the CMHR position.
The district court also properly determined that CareSource did not unlawfully
discriminate against Swank when it failed to offer her an alternative position in Cleveland or
Dayton. “Although a ‘reasonable accommodation’ may include reassignment to a vacant
position . . . an employer need not reassign a disabled employee to a position for which he is not
qualified” or “displace existing employees from their positions . . . in order to accommodate a
disabled individual.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004)
(citations omitted). All of the positions for RNs within the high-risk model were mobile.
Similarly, all of the positions for RNs in Cleveland that were outside of the high-risk model—
except for one or two positions in quality assurance—required travel to conduct face-to-face
visits with members. Swank cites no evidence that any positions in a quality-assurance role
became open during the time that she was seeking a reasonable accommodation. The undisputed
evidence therefore established that CareSource had no available positions for RNs in Cleveland
that would have addressed Swank’s concerns about driving to conduct face-to-face visits with
members.
CareSource was also not required to assign Swank to an alternative position in Dayton. It
is true that CareSource had telephonic positions for RNs in its office in Dayton. However, Swank
indicated to CareSource that she was not willing to relocate to Dayton.
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Swank argues that she identified a number of positions in the Cleveland area that were
filled after she requested a reasonable accommodation. This argument fails because these
positions (1) were not available during the time that Swank was seeking a reasonable
accommodation; (2) would not have addressed Swank’s driving limitations; or (3) would have
required CareSource to promote Swank.
First, several of the positions that Swank identified were not available during the time
that Swank was seeking a reasonable accommodation. Swank contends that her manager Lynn
Wertheim “was aware of other positions for RN’s that were available in Cleveland” including
positions for onsite CMHRs at the Metro Health Medical Center, the Parma Clinic, and “Metro
with Dr. Petrulis.” This assertion mischaracterizes Wertheim’s testimony. Wertheim actually
testified that nurses performed onsite CMHR positions at these medical facilities. Wertheim did
not testify that these positions were open during the time that Swank was seeking a reasonable
accommodation. Similarly, although Wertheim testified that she was aware of quality-assurance
positions for RNs in Cleveland, she did not state that any of these positions was open during the
time that Swank was seeking a reasonable accommodation. Id. at PageID #437. As stated
above, an employer is not required to “displace existing employees from their positions . . . in
order to accommodate a disabled individual.” Kleiber, 485 F.3d at 869 (citation omitted).
Accordingly, since none of these positions was vacant, CareSource was not obligated to assign
Swank to them.
Second, two of the available positions that Swank identified for RNs in Cleveland would
not have addressed Swank’s driving limitations. Although a position as an onsite CMHR at the
Metro Broadway Clinic became available in February 2012, this position would have required
Swank to drive the “far distance” between her home and the Metro Broadway Clinic during her
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daily commute and to drive to conduct face-to-face visits with members. Similarly, although a
CareSource employee was selected to be the North Region Liaison for the Area Agencies on
Aging in April 2012, Swank cites no evidence that indicates that this position was non-mobile.
Further, as explained above, all of the positions for RNs in Cleveland—aside from one or two
positions in quality assurance—required the RNs to conduct face-to-face visits with members.
Accordingly, the North Region Liaison position also would not have addressed Swank’s driving
limitations.
Third, one of the positions that Swank identified for RNs in Cleveland would have
required CareSource to promote Swank. Although CareSource promoted an employee to a team-
lead position in February 2012, CareSource was not required to offer this promotion to Swank.
This is because “[t]he ADA does not require an employer to offer an employee a promotion as a
reasonable accommodation.” Hedrick, 355 F.3d at 457 (citation omitted). Further, even if
CareSource was required to promote Swank to a team-lead position, this position would not have
addressed Swank’s driving limitations. This is because team leads traveled to conduct face-to-
face visits with members and to meet with providers in the community. Swank has therefore
failed to establish a genuine issue of fact about whether CareSource should have offered her an
alternative position.
Swank’s interactive-process claim also fails as a matter of law. This is because Swank
did not make a prima facie showing that she proposed a reasonable accommodation to
CareSource. “The duty to engage in the interactive process with a disabled employee is
mandatory and requires communication and good-faith exploration of possible accommodations.
The purpose of this process is to identify the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those limitations.” Keith, 703 F.3d at
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929 (internal citations and quotation marks omitted). “Although mandatory, failure to engage in
the interactive process is only an independent violation of the ADA if the plaintiff establishes a
prima facie showing that he proposed a reasonable accommodation.” Rorrer v. City of Stow,
743 F.3d 1025, 1041 (6th Cir. 2014) (citations omitted).
Swank failed to propose a reasonable accommodation that would have addressed her
stated driving limitations. Swank contends that she proposed a reasonable accommodation
because she “sought to be assigned members in the geographic area of her home in order to limit
driving [long] distances.” However, Swank testified that even if she were assigned members
closer to her home, she still might have to sit in the car for long periods of time due to traffic or
bad weather and still might experience flare-ups due to changes in the weather. Swank therefore
agreed that assigning her members closer to her home would not adequately address her concerns
Accordingly, because Swank did not propose a reasonable accommodation to CareSosurce that
would address her stated limitations, her interactive-process claim fails as a matter of law.
Swank contends that CareSource’s failure to consider restructuring the marginal
functions of the CMHR position or granting Swank leave on the days that she could not drive to
visit members creates a genuine issue of fact about the adequacy of the interactive process. This
argument is unavailing. It is true that Swank testified that Goldshot and Putman suggested that
Swank put in a request for leave so that on the days that she could not drive to visit a member,
CareSource could assign another CMHR to conduct the visit. However, Swank points to no
evidence that indicates that she ever followed up on this suggestion by asking CareSource to
grant her leave. Swank also does not cite any evidence showing that she ever asked CareSource
to restructure the marginal functions of the CMHR position. Further, Swank did not ask
CareSource to grant her leave or to restructure the marginal functions of her job in her written
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request for an accommodation. Indeed, after submitting this request, Swank not only failed to
indicate that either of these accommodations would adequately address her stated driving
limitations, she told CareSource that she could not perform the CMHR position with or without
accommodation. To prevail on an interactive-process claim, a plaintiff must meet his burden to
“establish[] a prima facie showing that he proposed a reasonable accommodation.” Rorrer,
743 F.3d at 1041 (citations omitted). “Part of this burden is that a plaintiff show that he
requested the specific accommodation; a plaintiff may not rely on accommodations that he did
not request.” Manigan, 385 F. App’x at 478 n.5 (citations omitted). Because Swank did not ask
CareSource to grant her leave or to restructure the marginal functions of the CMHR position, she
cannot rely on these accommodations to support her interactive-process claim.
Swank also contends that CareSource’s alleged failure to “engage in an appropriate
individualized inquiry to determine if Swank’s disability or other condition disqualified her from
the CMHR position” demonstrates that CareSource may have violated the ADA by failing to
engage in an interactive process with her. To support this contention, Swank claims that
Goldshot obstructed the interactive process by determining that Swank was disabled before
reviewing information that Swank’s doctor had submitted to CareSource. This argument is
unavailing. Although Goldshot formed an opinion that Swank could not perform the functions
of the CMHR job prior to reviewing information from Swank’s doctor, CareSource did not stop
the interactive process after Goldshot formed this opinion. Rather, Goldshot suggested that
Swank make a formal request for an accommodation. After Swank and Doctor Hegde returned
the complete application to CareSource, Casson followed up with Hegde when clarification was
needed and had at least ten discussions with Swank about her accommodation request. The
undisputed evidence therefore established that CareSource, using information provided by both
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No. 15-4193, Swank v. CareSource Management Group Co.
Swank and her doctor, engaged in an individualized inquiry to determine if Swank could perform
the CMHR position.
Swank also contends that CareSource did not engage in an interactive process with her
because Casson and Goldshot failed “to recognize the actual discrepancies” between Swank’s
and Doctor Hegde’s portions of the written accommodation request and because Casson
concluded that Swank needed an accommodation to perform as a CMHR even though Swank
had no active requests for leave and had only two absences in 2011. These arguments are
without merit. As stated above, Swank and Hegde both indicated on the written accommodation
request that, at least during acute flare-ups of her rheumatoid arthritis, Swank was unable to
perform the CMHR job without accommodation. Their portions of Swank’s written
accommodation request were therefore consistent. Further, as stated above, Swank was never
required to conduct face-to-face meetings with members while she was employed at CareSource.
Her attendance record at CareSource therefore did not establish that, as a CMHR, she would be
able to drive to conduct face-to-face visits with members. Accordingly, Swank’s interactive-
process claim fails as a matter of law.
In addition to raising an interactive-process claim in her complaint, Swank brought Ohio
employment-discrimination claims against CareSource. The district court properly concluded
that these claims failed as a matter of law. Given the similarity of the Ohio and federal statutes
governing disability discrimination, “analysis of claims made pursuant to the Americans with
Disabilities Act applies to” Ohio discrimination claims. Jakubowski, 627 F.3d at 201 (citation
omitted). As explained above, the district court properly concluded that Swank’s federal
discrimination claims failed as a matter of law. Accordingly, the district court’s dismissal of
Swank’s state-law claims was also proper.
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No. 15-4193, Swank v. CareSource Management Group Co.
The judgment of the district court is affirmed.
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