The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0226p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
SHERRY K. MILHOLLAND, M. Ed.,
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No. 08-5568
v.
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SUMNER COUNTY BOARD OF EDUCATION;
Defendants-Appellees. -
BENNY C. BILLS, Individually,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 07-00216—Aleta Arthur Trauger, District Judge.
Argued: April 28, 2009
Decided and Filed: July 2, 2009
Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: W. Gary Blackburn, BLACKBURN & McCUNE, PLLC, Nashville, Tennessee,
for Appellant. Amber St. John, LAW OFFICE OF AMBER ST. JOHN, Smyrna, Tennessee,
for Appellees. ON BRIEF: W. Gary Blackburn, BLACKBURN & McCUNE, PLLC,
Nashville, Tennessee, for Appellant. Amber St. John, LAW OFFICE OF AMBER ST.
JOHN, Smyrna, Tennessee, for Appellees.
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OPINION
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ROGERS, Circuit Judge. Sherry Milholland appeals the district court’s grant of
summary judgment in favor of the defendants on her Americans with Disabilities Act (ADA)
claim. Milholland has worked for the Sumner County Board of Education as a teacher and
administrator for fourteen years. Milholland suffered from arthritis and alleged that the
Board’s Director of Schools regarded her as disabled, and therefore transferred her from an
1
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 2
administrative position to a classroom teaching position. The recently-enacted ADA
Amendments Act of 2008 does not apply to this case. Under the prior version of the statute,
the facts construed in the light most favorable to Milholland do not show a genuine issue for
trial that the defendants regarded Milholland as disabled. The district court therefore
properly ruled for the defendants.
I.
Sherry Milholland has worked as a teacher and administrator for the Sumner County
Board of Education since 1995. In 2001, Milholland was diagnosed with inflammatory
arthritis. Milholland’s doctor never gave her any work restrictions and her condition did not
limit her ability to perform either as a classroom teacher or as a school administrator.
Milholland did not inform the Board of her condition nor did she ask for any
accommodation.
At the time of Milholland’s diagnosis, Benny Bills was working as the principal of
Gallatin High School, and Milholland’s husband was a teacher at that school. Milholland’s
husband generally discussed Milholland’s health problems with Bills, but Milholland’s
husband never told Bills about Milholland’s specific diagnosis. Bills continued to inquire
about Milholland’s health at social occasions. Bills later became the Director of Schools for
Sumner County.
In May 2004, Milholland became one of the two assistant principals at Knox Doss
Middle School. Her principal, Mike Brown, was aware of her medical condition.
Milholland had a difficult working relationship with the other assistant principal, Rufus
Lowe. Milholland told Brown that Lowe did not carry his share of the workload.
On March 13, 2006, Milholland met with Bills to discuss the issues at the school.
Milholland complained about Lowe’s performance and noted that it was increasing her own
workload. Bills brought up Milholland’s own performance, and Milholland claims that Bills
said something to the effect of “Don’t you think it would be easier on your health if you
would just go back to the classroom?” Milholland Dep., p. 92. Bills admitted that he
discussed Milholland’s return to teaching, but stated that his comment was not related to
Milholland’s health. Rather he was only discussing the fact that administrative positions
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 3
involved more work and stress than teaching positions. After the meeting, Milholland sent
Bills a follow-up letter stating that she “simply wanted [Bills] to be aware that [she] strongly
felt that [she] was plenty healthy enough to continue as an administrator, because [Bills] had
brought up that question about going back to the classroom.” Milholland Dep., p. 94. The
letter stated that her “illness, thanks to a tremendous rheumatologist and new medications,
is well under control.” Milholland Dep., p. 94. Milholland asked to stay in an administrative
position.
In early 2006, Brown and Bills met to discuss the situation at Knox Doss Middle
School and Milholland and Lowe’s working relationship. Although both Brown and Bills
had greater problems with Lowe’s performance than with Milholland’s, they noted that
“teachers did not have that working relationship of respect with Mrs. Milholland because
there was always fraction, discord between [her and Lowe].” Bills Dep., p. 45. Brown and
Bills decided to solve the problem by transferring both Milholland and Lowe from the
1
school. Brown and Bills believed that transferring both employees would create a
“clean slate with faculty, with parents, and with students.” Bills Dep., p. 44-45. Brown
filled out a request to transfer Milholland after the decision was made.
In April 2006, Milholland requested to be transferred to one of two positions:
principal at Wessington Place Elementary School or Materials Center Supervisor at the
Board’s Central Office. Brown recommended transfer to the principal position. Bills
could have approved the transfer without interviewing Milholland or offering the
position to other applicants, but he chose not to do so. Milholland interviewed for the
position, but was not chosen. Instead, Bills transferred Milholland to a teaching position
at Station Camp High School. Bills told her she was being transferred because she was
not “getting the job done” as vice principal. Milholland Dep., p. 99.
After learning of her transfer, Milholland and her husband set up meetings with
Bills. The first meeting was between Bills and Milholland’s husband. Milholland’s
1
Milholland claims that Brown did not intend to have her transferred. The district court found
that this characterization was not supported by the record because Brown stated that, during the discussion,
“it became apparent” that Milholland would also need to be transferred. Milholland v. Sumner County Bd.
of Educ., No. 3:07-cv-0216, 2008 WL 974726, at *1 n.3 (M.D. Tenn. Apr. 8, 2008). Milholland presents
no evidence that it was not a unified decision.
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 4
husband alleged that, during the meeting, Bills told him the transfer was because
Milholland had missed too many days of work, but that Bills did not specifically refer
to Milholland’s health. The second meeting included all three individuals, after
Milholland retained counsel. Milholland unsuccessfully attempted to record the
conversation on a hidden audio device. Milholland alleges that, during the meeting, her
husband asked Bills if he discussed Milholland’s health during the March 13, 2006
meeting and that Bills confirmed that he did.
In August 2006, Milholland filed a discrimination charge with the EEOC, and
she received a right to sue letter in January 2007. On February 21, 2007, Milholland
filed this suit in the Middle District of Tennessee against the Board of Education and
against Bills, in his official and individual capacities, alleging violations of the ADA and
the Tennessee Handicap Act and Human Rights Act. The district court dismissed the
individual claims against Bills under the ADA and Tennessee Handicap Act for failure
to state a claim. The defendants moved for summary judgment on the remaining claims.
On April 8, 2008, the district court granted summary judgment as to the ADA claims and
declined to exercise supplemental jurisdiction over the remaining state law claims. The
district court determined that the defendants’ general statements regarding Milholland’s
health did not support a finding that the defendants regarded her as impaired. The
district court also found that Milholland was still able to work in the same class of jobs,
so that she was not substantially limited in the life activity of working. Milholland now
appeals.
II.
The recently-enacted ADA Amendments Act of 2008 does not govern this case
because its application would have the type of impermissibly retroactive effect that
requires a clearly-stated congressional intent. Under the prior version of the statute, the
facts construed in the light most favorable to Milholland do not support a finding that
the defendants regarded Milholland as disabled. Nor do the facts support a conclusion
that the defendants regarded any impairment of Milholland’s as substantially limiting
her in her life activity of working. Milholland cannot make a prima facie case of
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 5
discrimination under the ADA and the district court properly granted summary
judgment.
The ADA Amendments Act of 2008, which became effective on January 1, 2009,
Pub. L. No. 110-325, § 8, 122 Stat. 3553, does not apply retroactively to govern conduct
occurring before the Act became effective. Before January 1, 2009, the ADA defined
a disability as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (2006). Under this definition, the impairment that a plaintiff was
“regarded as having” under subpart (C) was an impairment as defined in subpart (A). In
turn, under subpart (A), to limit the major life activity of working, a plaintiff had to show
that she was regarded as having an impairment that substantially limited her life activity
of working in the same “broad class of jobs.” Sutton v. United Air Lines, Inc., 527 U.S.
471, 491 (1999).
The amended version of the ADA no longer requires the plaintiff bringing a
claim under subpart (C) to show that the impairment limited her life activity, including
working in a broad class of jobs. The ADA now defines a disability as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in
paragraph (3)).
42 U.S.C.A. § 12102(1) (2009) (added language italicized). Paragraph (3) states that
An individual meets the requirement of “being regarded as having such
an impairment” if the individual establishes that he or she has been
subjected to an action prohibited under this chapter because of an actual
or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life activity.
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 6
Id. § 12102(3)(A). Congress enacted the ADA Amendments Act in order to “reinstat[e]
a broad scope of protection to be available under the ADA,” and to overrule Sutton. Pub.
L. No. 110-325, § 2, 122 Stat. 3553, 3554. We assume, for the purposes of our
retroactivity analysis, that this change expands the coverage of the ADA to employer
actions not previously covered.
The conduct at issue in this case occurred before the ADA Amendments Act
became effective and, as in Landgraf v. USI Film Products, 511 U.S. 244 (1994),
Congress did not “expressly prescribe[]” whether the statute should reach back to cover
this conduct. Id. at 280. The statute only states that it “shall become effective on
January 1, 2009.” Pub. L. No. 110-325, § 8, 122 Stat. 3553, 3559. Congress did
expressly state its intent was to overrule Sutton and “reinstat[e] a broad scope of
protection to be available under the ADA,” § 2(b)(1), 122 Stat. 3553, 3554. However,
Congress’s intent to “restore” prior protections “does not, by itself, reveal whether
Congress intends the ‘overruling’ statute to apply retroactively.” Rivers v. Roadway
Exp., Inc., 511 U.S. 298, 304 (1994).
Although in many situations “a court should apply the law in effect at the time
it renders its decision, even though that law was enacted after the events that gave rise
to the suit,” there is nonetheless a “well-settled presumption against application of . . .
new statutes that would have genuinely ‘retroactive’ effect.” Landgraf, 511 U.S. at 273,
277 (citations and internal quotations omitted); see also BellSouth Telecomms., Inc. v.
Se. Tel., Inc., 462 F.3d 650, 657 (6th Cir. 2006). Like the Title VII amendments at issue
in Landgraf, 511 U.S. at 269-70, the ADA Amendments Act, if applied retroactively,
“attaches new legal consequences to events completed before its enactment.” Id. at 270
(internal citations omitted). As discussed, Congress broadened the class of plaintiffs
who could bring a cause of action under the “regarded as” prong, and retroactive
application would therefore “increase a party’s liability for past conduct, or impose new
duties with respect to transactions already completed.” Id. at 280.
Although Congress may have intended to restore the interpretation of the ADA
to that which it originally desired, there is still a genuinely retroactive effect in this case.
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 7
The Supreme Court’s “construction of [the] statute is an authoritative statement of what
the statute meant before as well as after [Sutton].” Rivers, 511 U.S. at 312-13. Congress
can only retroactively overturn that interpretation when “its intent to reach conduct
preceding the ‘corrective’ amendment . . . clearly appear[s].” Id. at 313. Otherwise,
Sutton “provides the baseline” for our retroactivity analysis, id., and a comparison of the
ADA as interpreted in Sutton with the ADA as amended shows that the ADA
Amendments Act has a genuinely retroactive effect if applied.
Application of these principles compels the conclusion that the ADA
Amendments Act does not apply to pre-amendment conduct. Other courts that have
addressed the issue have similarly held that the ADA Amendments Act does not apply
retroactively. See, e.g., EEOC v. Agro Distrib. LLC, 555 F.3d 462, 469 n.8 (5th Cir.
2009); Caronia v. Hustedt Chevrolet, No. 05-3526, 2009 WL 909729, at *8 (E.D.N.Y.
Apr. 1, 2009); Amorosi v. Molino, No. 06-5524, 2009 WL 737338, at *4 n.7 (E.D. Pa.
Mar. 19, 2009); Supinski v. United Parcel Serv., Inc., No. 3:CV-06-0793, 2009 WL
113796, at *5 n. 6 (M.D. Pa. Jan. 16, 2009); Rudolph v. U.S. Enrichment Corp., No.
5:08-CV-00046-TBR, 2009 WL 111737, at *6 (W.D. Ky. Jan. 15, 2009).
III.
Under the prior version of the ADA, the facts do not support that the defendants
regarded Milholland as disabled and there is not, therefore, a genuine issue for trial. To
make a prima facie case of discrimination under the ADA, Milholland must first show
that she is “a disabled person within the meaning of the Act.” Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 810 (6th Cir. 1999). Milholland does not claim that her
arthritis is itself a disability, but asserts that she is disabled within the meaning of the
ADA because she was “regarded as” having an impairment under 42 U.S.C.
§ 12102(2)(C) (2006). Under this version of the statute, Milholland must show that she
was “regarded as having . . . [an] impairment that substantially limits” her major life
activity of working in a broad class of jobs. Id.; Sutton, 527 U.S. at 491.
The facts, construed in the light most favorable to Milholland under Matsushita
Electric Industries Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), support a
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 8
finding only that the defendants generally knew that Milholland was ill, but not that they
regarded her as impaired. Bills first found out about Milholland’s illness when
Milholland’s husband worked with Bills at the same school, prior to the time when Bills
supervised Milholland. Thereafter, Bills inquired about Milholland’s health at social
events. During the March 13, 2006 meeting, Bills made a reference to Milholland’s
health in regard to transferring Milholland to a teaching position. As a result,
Milholland sent Bills a letter discussing her illness and stating that she was healthy
enough to continue to work as an administrator. After Milholland was informed of her
transfer, she and her husband met with Bills on two occasions. In the first meeting, Bills
stated that Milholland was transferred due to missing work, though Bills did not
expressly attribute the absences to health issues. In the second meeting, Bills admitted
that he had discussed Milholland’s health during the March 13, 2006, meeting in regard
to returning Milholland to a teaching position. These facts show only a general
knowledge of health issues.
Furthermore, despite knowledge of Milholland’s health issues, the evidence does
not support a conclusion that the defendants thought that Milholland’s abilities were
impaired. Milholland never mentioned the specifics of her illness to the Board of
Education. As Milholland states in her brief, Brown, her principal, “never got the
impression that she could not do her job” because of her illness. Appellant’s Br. at 8.
On the contrary, despite an awareness to her ongoing illness, Brown assigned varying
duties to Milholland that might be difficult for an individual with Milholland’s illness:
Milholland “mopped floors; cleaned bathrooms; painted the boys’ restroom and served
lunch in the cafeteria” while serving as an administrator. Milholland Dep., p. 62-63.
Furthermore, Bills continued to employ Milholland as a teacher, employment that
involved at least some duties similar to those of an administrator, “a fact which
[militates] against a finding that [the defendants] regarded [her] as substantially limited
in working,” Cotter v. Ajilon Services, Inc., 287 F.3d 593, 600-01 (6th Cir. 2002). That
the defendants were aware of Milholland’s health issues does not support a conclusion
that they misperceived Milholland’s physical abilities as impaired and affecting her
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 9
performance. See McElroy v. Philips Med. Sys. N. Am., Inc., 127 F. App’x 161, 169 (6th
Cir. 2005).
Even if the defendants harbored such ideas, there is no evidence that the
defendants thought Milholland’s impairment substantially limited her in her life activity
of working in a broad class of jobs. Milholland continues to be employed by the
defendants as a teacher, which is in the same class of jobs as an administrator. See, e.g.,
Temple v. Bd. of Educ. of the City of N.Y., 322 F. Supp. 2d 277, 281 (E.D.N.Y. 2004);
see also Swain v. Hillsborough County Sch. Bd., 146 F.3d 855, 858 (11th Cir. 1998).
Administrators and teachers are both educators with “similar training, knowledge, skills
or abilities” and thus are in the same class under 29 C.F.R. § 1630.2(j)(3)(ii)(B).
Although being an administrator may require additional training and certifications, and
require more organizational skill, these distinctions do not take the position out of the
“broad class” of jobs that envelops all educators. In Sutton, the Supreme Court
considered both “global airline pilot” and “pilot instructor” to be within a broad class of
jobs that included all pilots. 527 U.S. at 493 (citing 29 C.F.R pt. 1630, App. § 1630.2
(1998)).
Milholland was not precluded from working in a broad class of jobs simply
because Bills did not give her the administrator job she desires. See id. at 492. Even if
Milholland was regarded as having an impairment that limited working as an
administrator, “the inability to perform a single, particular job does not constitute a
substantial limitation” on her life activity of working. Moorer v. Baptist Mem. Health
Care Sys., 398 F.3d 469, 479 (6th Cir. 2005) (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
Additionally, it is of no consequence that Milholland was also turned down for two other
administrative jobs. Milholland was still not “precluded from more than one type of
job,” Sutton, 527 U.S. at 492 (emphasis added), because she is employed in a classroom
position. That Milholland was not given the job that may best utilize her “unique
talents,” id., does not aid her claim. Where “jobs utilizing an individual’s skills . . . are
available, one is not precluded from a substantial class of jobs.” Id.
No. 08-5568 Milholland v. Sumner County Bd. of Educ. Page 10
There is accordingly no genuine issue of material fact as to an essential element
of Milholland’s claim, and summary judgment in favor of the defendants was
appropriate. The judgment of the district court is affirmed.