author: KEITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Rondell BATES, Defendant-Appellee.
    No. 95-5507.
    United States Court of Appeals, Sixth Circuit.
    Argued March 14, 1996.
    Decided May 28, 1996.

      Victor L. Ivy (argued and briefed), Office of U.S. Atty., Memphis, TN, for U.S.
    Joseph T. Townsend (argued and briefed), Office of Federal Public Defender, Memphis, TN, for Rondell Bates.
    Before: KEITH, NELSON, and SILER, Circuit Judges.
   KEITH, Circuit Judge.

The Plaintiff-Appellant, the United States Government, appeals the district court’s order granting the Defendant-Appellee, Ron-dell Bates’, motion to suppress evidence obtained during the execution of a search warrant. For the reasons stated below, we AFFIRM the decision of the district court.

I. Statement of the Case

On September 30, 1994, members of the Shelby County Sheriffs Department Narcotics Division (“Narcotics Division”) executed a search warrant at 5999 North Littlebrook Circle, Apartment 201, Memphis, Tennessee (“Apartment”). The lease to the Apartment was in the name of Jimmy and Essence Bates. The Narcotics Division obtained the search warrant based on information they received from an informant, Kraig Boddie (“Boddie”). Boddie informed officers of the Narcotics Division he had been in the Apartment when Jimmy Bates and Winston Bennett (“Bennett”) had received and sold drugs. Boddie also informed Shelby County Sergeant Martin Dunbar (“Sergeant Dunbar”) that a multiple kilogram cocaine shipment would soon be delivered to Rondell Bates, Jimmy Bates and Bennett (together “Defendants”). In addition, Boddie told Sergeant Dunbar he had seen a firearm in the Apartment, on top of the refrigerator and that the Defendants had barricaded the front door with a two by four.

Based on the information provided by Bod-die, the Narcotics Division applied for and received a warrant to search the Apartment. On the morning of September 30, 1993, Narcotics Division officers established video surveillance of the Apartment. Surveillance officers observed Rondell Bates arrive at the Apartment carrying a large cardboard box, which the officers suspected contained the anticipated cocaine shipment. This suspicion was confirmed by Boddie, who informed Sergeant Dunbar that one of the Defendants told him by phone that a cocaine shipment of fifteen kilograms had arrived. He told Sergeant Dunbar the Defendants had opened the cocaine packages for testing.

In order to execute the warrant, the plan was that some of the officers would use a ladder to gain access to the Apartment through the second floor balcony. The rest of the officers were to bang on the front door, with a battering ram, to draw the attention of those inside the Apartment away from the officers entering via the balcony. However, the officers, prior to ascending the ladder in the Apartment, observed Jimmy Bates standing on the balcony. The officers determined Jimmy was acting as a lookout while those inside the Apartment were testing the cocaine shipment.

On the evening of the 30th, the Narcotics Division executed their prearranged plan. The officers entered the Apartment without knocking as the other group of officers ascended the ladder to the second floor balcony. The officers ascending the balcony announced they were law enforcement officers as they were climbing up the ladder. As the officers started coming up the ladder, Jimmy Bates ran into the apartment and then back out onto the balcony where he was arrested in possession of a .32 caliber pistol. When the officers began ramming the door, Rondell Bates ran out of the apartment onto the balcony where he also was apprehended. Inside the Apartment, Sergeant Dunbar discovered fifteen kilograms of cocaine at the end of the couch with a firearm in the immediate vicinity.

The video surveillance of the front door entry verified that the officers executing the warrant did not knock and announce their presence before breaking down the door to the Apartment. The video also shows it took the officers entering the Apartment through the front door less than ten seconds to open the door, despite the reported barricade.

On October 17, 1994, the Defendants were indicted by a Federal Grand Jury for the Western District of Tennessee. The three count indictment charged the Defendants with a variety of narcotics related crimes. Count One charged them with conspiring to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 946. Count Two charged the Defendants with aiding and abetting each other in the possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The final count charged Rondell and Jimmy Bates with carrying and using a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(e).

Rondell Bates filed a motion to suppress the evidence obtained during the execution of the search warrant. He asserted that the Narcotic Division officers’ failure to knock and announce their presence before entering the apartment rendered the subsequent search of the Apartment unconstitutional.

A federal magistrate judge held a suppression hearing on January 20, 1995. On January 31, 1995, the magistrate judge filed a report recommending that Rondell Bates’ motion to suppress be denied. The magistrate judge found the circumstances surrounding the execution of the warrant were exigent thereby excusing compliance with the requirement that they knock and announce their presence. Rondell promptly filed objections to the magistrate judge’s report.

At the magistrate judge’s suppression hearing, Sergeant Dunbar testified that the officers executing the search warrant did not announce their presence and purpose out of fear the Defendants would dispose of the cocaine before the officers could enter the Apartment. Sergeant Dunbar further testified that the possible presence of a weapon in the Apartment was an additional factor in the decision to enter the Apartment without first knocking and announcing. However, Sergeant Dunbar also testified he believed it was highly unlikely anyone could have disposed of fifteen kilograms of cocaine in the time it would have taken the officers to enter the Apartment after knocking and announcing their presence. In addition, Sergeant Dunbar told the magistrate judge he had no information or facts indicating the Defendants were violent and would use a weapon when confronted by law enforcement personnel.

On March 1,1995, the district court issued its opinion denying Rondell Bates’ motion to suppress on different grounds from those relied on by the magistrate judge. The district court denied Rondell Bates’ motion to suppress after determining Rondell did not have standing to challenge the execution of the search warrant because did he not reside at the Apartment. Since the district court denied the motion to suppress based on Ron-dell Bates’ lack of standing, its opinion contained no discussion of whether exigent circumstances excused compliance with the knock and announce requirement.

On March 6,1995, the district court reconsidered Rondell Bates’ motion to suppress and held a hearing to determine whether Rondell Bates had standing to challenge the execution of the search warrant. After finding Rondell Bates did have standing to challenge the search, the district court orally-granted the motion to suppress. A written order, granting the motion to suppress was entered on March 9,1995. The district court found the officers’ fear that the Defendants would dispose of the cocaine was unreasonable and did not eliminate the need for the officers to knock and announce their presence before entering the Apartment. The district court reasoned “it would be real difficult to dispose of 15 kilograms of cocaine before [the officers] made a knock and announce entry.” In addition, the district court found that the possibility a weapon was in the apartment did not create an exigency because there was no indication the Defendants would use the weapon and place the officers’ safety at risk.

The government filed a timely notice of interlocutory appeal.

II. Discussion

The government claims the district court erred by granting Rondell Bates’ motion to suppress. It claims there were sufficient exigent circumstances to warrant an entry not first accompanied by an announcement of the officers’ presence and authority.

This Court reviews a district court’s legal conclusions with respect to a motion to suppress de novo. United States v. Radka, 904 F.2d 357, 361 (6th Cir.1990); United States v. Maden, 64 F.3d 1505, 1508 (10th Cir.1995). However, the “district court’s factual findings on the existence of exigent circumstances will be disturbed only if they are clearly erroneous.” Radka, 904 F.2d at 361. In addition, we must “review the evidence in the light most likely to support the district court’s decision.” United States v. Roark, 36 F.3d 14, 16 (6th Cir.1994) (quoting United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, 506 U.S. 892, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992)). The government bears the burden of proving exigent circumstances existed. Id. at 17; Maden, 64 F.3d at 1509.

Title 18, United States Code, section 3109 states:

An officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

18 U.S.C. § 3109 (1985). Thus, law enforcement officers must knock and announce their presence and authority before entering a residence to execute a warrant. See Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197-98, 2 L.Ed.2d 1332 (1958); United States v. Nabors, 901 F.2d 1351, 1354 (6th Cir.), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990). As recognized by other Circuits addressing this issue, the interests protected by § 3109 include: “(1) the reduction of potential for violence to both the police officer and the occupants of the house into which entry is sought; (2) the needless destruction of private property; and (3) a recognition of the individual’s right to privacy in his [or her] house.” See, e.g., United States v. Brown, 52 F.3d 415, 421 (2d Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 754, 133 L.Ed.2d 701 (1996).

However, because § 3109 is a federal statute it is not intended to govern the actions of state law enforcement personnel. United States v. Gatewood, 60 F.3d 248, 249 (6th Cir.), cert. denied, — U.S. -, 116 S.Ct. 546, 133 L.Ed.2d 448 (1995) (citing United States v. Moore, 956 F.2d 843, 847 (8th Cir.1992)); United States v. Murphy, 69 F.3d 237, 242 (8th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 1032, 134 L.Ed.2d 109 (1996). When a court is faced with reviewing state law enforcement activities during the execution of a warrant, it must evaluate those actions in light of the Fourth Amendment’s reasonableness requirement. Wilson v. Arkansas, — U.S. ,-, 115 S.Ct. 1914, 1916, 131 L.Ed.2d 976 (1995). The Supreme Court has found that absent exigent circumstances, it is unreasonable for officers to enter a dwelling without first knocking and announcing their presence. Id. at-, 115 S.Ct. at 1918. Thus, unless exigent circumstances exist, the failure of state law enforcement officials to knock and announce their presence will render the evidence procured during the ensuing execution of a warrant inadmissible. See United States v. Finch, 998 F.2d 349, 354 (6th Cir.1993) (holding evidence obtained during knockless execution of a search warrant should not be suppressed because exigent circumstances existed); United States v. Becker, 23 F.3d 1537, 1541-42 (9th Cir.1994) (holding evidence obtained during the execution of a search warrant where the police failed to knock and announce should be suppressed because no exigent circumstances existed).

This Circuit has determined exigent circumstances exist when: “(1) the persons within already know of the officers’ authority and purpose; (2) the officers have a justified belief that someone within is in imminent peril of bodily harm; or (3) the officers have a justified belief that those within are aware of their presence and are engaged in escape or the destruction of evidence.” Finch, 998 F.2d at 353 (quoting United States v. Francis, 646 F.2d 251, 258 (6th Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 637, 70 L.Ed.2d 616 (1981)). However, officers must have more than a mere hunch or suspicion before an exigency can excuse the necessity for knocking and announcing their presence. Radka, 904 F.2d at 362; see United States v. Stewart, 867 F.2d 581, 585 (10th Cir.1989). Courts will closely scrutinize officers making a forced entry without first adequately announcing their presence and purpose. Nabors, 901 F.2d at 1355.

In this case, the government concedes the officers executing the warrant did not knock and announce their presence before entering the Apartment. The government, however, contends the officers executing the search warrant were confronted with exigent circumstances excusing the requirement they adequately announce their presence and purpose. It is argued by the government that because the Defendants were alleged to be in possession of a handgun, were likely to destroy the cocaine and had barricaded the front door, exigent circumstances were present and excused the need to knock and announce their presence.

The presence of a weapon creates an exigent circumstance, provided the government is able to prove they possessed information that the suspect was armed and likely to use a weapon or become violent. Nabors, 901 F.2d at 1354; see Murphy, 69 F.3d at 242; Becker, 23 F.3d at 1540; United States v. Marts, 986 F.2d 1216, 1218 (8th Cir.1993); Stewart, 867 F.2d at 584; United States v. Spinelly 848 F.2d 26, 30 (2d Cir.1988). Evidence that firearms are within a residence, by itself, is not sufficient to create an exigency to officers when executing a warrant. Nabors, 901 F.2d at 1354; Murphy, 69 F.3d at 242; Marts, 986 F.2d at 1218. However, threats to an officer’s safety, a criminal record reflecting violent tendencies, or a verified reputation of a suspect’s violent nature can be enough to provide law enforcement officers with justification to forego the necessity of knocking and announcing their presence. Nabors, 901 F.2d at 1354.

The Nabors court excused compliance with § 3109 where the record showed the defendant was a felon in possession of a firearm and habitually wore a bullet-proof vest. Id. The court warned, however, that it was the solemn duty of the judicial system to ensure the right of each citizen to be free from unreasonable searches by forcing the government to prove the existence of exigent circumstances before excusing the knock and announce requirement. Id. at 1354. The Nabors court stated “we do not hold that every time law enforcement personnel suspect that the subject of a search warrant possesses a firearm ... a forced entry sufficiently complies with 18 U.S.C. § 3109.” Id.

Other Circuits have suppressed evidence in situations where the government could not provide specific facts that a particular suspect was both armed and dangerous. Becker, 23 F.3d at 1541; Stewart, 867 F.2d at 584. In Becker, the Ninth Circuit held exigent circumstances could not rest on generalized and non-specific fears. Becker, 23 F.3d at 1541. The Becker court concluded that the fact some members of an alleged drug distribution ring had weapons in their homes was not enough to show the subject of their search warrant had a weapon in his home and posed a danger to the police. Id.

In Stewart, the Tenth Circuit suppressed evidence obtained by the police after they executed a search warrant without first announcing their presence and authority. Stewart, 867 F.2d at 584. The police never attempted to knock on the defendant’s door before breaking it down and lobbing a stun grenade into the apartment. Id. at 583. The police based their exigent circumstances claim on the fact an informant had reported the presence of a handgun in the apartment and on the fact the defendant was of Jamaican descent and thus, should have been considered dangerously violent. Id. at 584. In reversing and remanding the denial of the defendant’s motion to suppress, the Stewart court concluded the officers’ basis for claiming exigent circumstances was not reasonable because the police could not provide the court with any reasonable and specific basis showing the defendant was dangerous. Id.

In the instant case, we find nothing in the record indicating anyone inside the Apartment was dangerously armed and prone to violence. While the officers had been informed by Boddie there was a handgun inside the Apartment, Boddie never told the officers that the Defendants were violent and likely to use a weapon if confronted by law enforcement personnel. In addition, there is no evidence showing the Defendants had a criminal history of violence or a reputation indicating they were likely to be violent. None of the Defendants had a criminal record for violent crimes and none of the Defendants had threatened violence against any law enforcement official who attempted to interfere with their drug selling business. Thus, there was no reasonable basis for the Narcotics Unit to claim they were faced with a situation where their safety was placed in jeopardy due to the presence of a handgun in the apartment.

The possibility that an individual may destroy drug evidence can also create exigent circumstances. Radka, 904 F.2d at 362. However, the government must prove they had “a reasonable belief that the loss or destruction of evidence [was] imminent.” Id. The mere possibility or suspicion that a party is likely to dispose of evidence when faced with the execution of a search warrant is not sufficient to create an exigency. Id.; Becker, 23 F.3d at 1541. Nor is the generalized and often recognized fear that destruction of evidence is an inherent possibility during the execution of a warrant adequate grounds to find exigent circumstances, Becker, 23 F.3d at 1541, although this is more likely to be accepted when the drugs are in easily disposable quantities. See, e.g., United States v. Kennedy, 32 F.3d 876, 882 (4th Cir.1994), cert. denied, — U.S.-, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995) (citing United States v. Moore, 956 F.2d 843, 850 (8th Cir.1992)).

The government’s contention that exigent circumstances were present because they feared the cocaine would be destroyed lacks merit. As the district court noted, it is unreasonable to think that fifteen kilograms of powder cocaine could be quickly disposed of by flushing it down the toilet or dumping it down the sink drain. This point was conceded by Sergeant Dunbar during his testimony at the suppression hearing. He testified it was highly unlikely the Defendants would have had time to dispose of fifteen kilograms of powder cocaine in the time it would have taken the officers to knock and announce their presence. Additionally, there is no evidence indicating the Narcotics Unit had any information the Defendants were likely to dispose of the drugs or any other evidence in an effort to avoid arrest.

Finally, the barricading of the Apartment’s front door did not create an exigent circumstance. Although a barricade may be considered a relevant factor in determining whether exigent circumstances are present, see Stewart, 867 F.2d at 585, here the officers possessed no information indicating that the barricade would create a serious impediment to their quick entry into the Apartment or place their safety in peril. Indeed, even if the barricade had created an impediment there still would not be an exigent circumstance because the officers’ prearranged plan called for the main point of entry into the Apartment to be through the balcony. The banging on the front door was merely intended to be a ploy to divert the attention of those inside the Apartment away from the officers entering through the balcony. Thus, the barricade, in the instant case, could not have been a serious hinderance to the officers’ attempts to access the Apartment.

As a result, based on the information within the knowledge of the Narcotics Unit when they arrived at the Apartment to execute the search warrant, there is no basis upon which this court could find exigent circumstances existed. The existing case law, from this and other Circuits, and the undisputed facts on the record, make it clear no exigency existed which excused the Narcotics Unit from knocking and announcing their presence before forcibly entering the Apartment.

III. Conclusion

For the reasons stated above, we AFFIRM the decision by the Honorable Jerome Turner, United States District Court Judge for the Western District of Tennessee, to grant Rondell Bates’ motion to suppress the evidence obtained during the execution of the search warrant.

      . The Fourth Amendment to the United States Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      U.S. Const, amend. IV.


source: Caselaw Access Project

author: MOORE, Circuit Judge.

license: Public Domain

text:
    Frances HANKINS, Plaintiff-Appellant, v. THE GAP, INC., Defendant-Appellee.
    No. 95-5243.
    United States Court of Appeals, Sixth Circuit.
    Argued March 19, 1996.
    Decided May 29, 1996.

      John H. Forg (argued and briefed), Forg & Forg, Cincinnati, OH, for plaintiff-appellant.
    Roger A Weber (argued), Thomas J. Sara-katsannis (briefed), Taft, Stettinius & Hollis-ter, Cincinnati, OH, Robert B. Craig, Taft, Stettinius & Hollister, Crestview Hills, KY, Joanne K. Garrison, The Gap, Inc., San Bruno, CA, for defendant-appellee.
    Before LIVELY, MARTIN, and MOORE, Circuit Judges.
   MOORE, Circuit Judge.

Plaintiff Frances Hankins appeals from the district court’s summary judgment in this action under Title I of the Americans With Disabilities Act, 42 U.S.C. §§ 12111-12117. Hankins argues that her former employer, The Gap, Inc., discriminated against her on the basis of her migraine headaches. The district court, however, determined that she was not a “qualified individual with a disability.” We affirm, because Hankins failed to take advantage of reasonable accommodations provided by The Gap. In addition, we affirm the district court’s dismissal of Han-kins’s pendent state law claims.

I. BACKGROUND

Hankins was an at-will employee of The Gap from December 1980 to December 1992. During most of this period, she worked in the company’s distribution center as a merchandise handler, or “picker,” pulling items from the warehouse stock and placing them in containers for shipment to The Gap’s various retail stores. Items were picked according to a “picking ticket,” which listed the specific articles of clothing required for each store. As both parties acknowledge, accuracy and productivity in filling these orders were the most important requirements for performing the job.

To ensure accuracy, The Gap periodically checked a random sample of each picker’s work. If a picker’s error rate exceeded 1.25% for any given four-week period, the employee was given a warning, under a progressive discipline system. The first stage of this system was a verbal warning. If an employee’s four-week error rate exceeded 1.25% within three months of receiving a verbal warning, he or she would then be given a written warning. If the employee again exceeded 1.25% within three months of a written warning, the employee received a final warning. A further incident of inaccuracy within three months of a final warning meant termination for the employee. This is what happened to Hankins in 1992. Although in prior years she had received verbal and written warnings, she had been able to bring her four-week error percentage under 1.25% before receiving a final warning. In 1992, however, she received a verbal warning on May 13, a written warning on August 5, and a final warning on September 28. On December 8, her last day of work, Hankins was again found to have exceeded the maximum allowable rate, with a four-week error calculation of 3.11%. She was told that she was going to be fired. According to The Gap, Hankins’s error rate for the entire year was 1.48%. By contrast, the average rate in 1992 for all pickers was 0.58%.

Hankins claims that her inaccurate picking was attributable to headaches that she had suffered since 1988. It was only at the end of March 1992, however, that she learned these were migraine headaches. She states that she then informed her supervisors of her disability and repeatedly requested that she be transferred to another area of the warehouse, either “Pikpak” (also called “Pick-Pack”) or “Shoes,” which she perceived to be less stressful than her customary area and thus less likely to induce migraines. Although her supervisors had periodically transferred her and other employees to “Pik-pak” on a temporary basis in the past, they allegedly refused to transfer her on many of the occasions she requested after March 1992. As a result, she claims, The Gap faded to provide reasonable accommodation for her disability. The Gap, on the other hand, denies that Hankins ever informed the company of her condition, noting that there is no written record of migraines in any of her personnel files. Moreover, it points out that other employees of The Gap who suffered from migraines were more than adequately accommodated by the company’s leave and medical policies, which were also available to Hankins.

On December 8, 1992, the date she failed the final stage of the progressive discipline process, Hankins claims to have suffered another severe headache. Although she was not fired on the spot, she was informed that her termination the following week was inevitable. Her supervisor also supposedly told her that she could go home early, take the rest of the week off, and simply wait for the notice of termination. Instead, she decided to continue working that day. The following day, Hankins did not report to work; on December 10, before she was officially fired, she submitted a request for a one-month disability leave, attaching a recommendation from her physician. After some consideration, The Gap decided to grant her leave, but the company stated that she would be terminated upon expiration of the leave. During leave, Hankins was able to draw disability pay and health insurance. She then successfully obtained extensions of this leave, first for “temporary” total disability, and then “permanent” total disability. This lasted until February 1994, when The Gap finally informed her that all leave privileges had expired and that she was officially terminated. By this time, Hankins had already filed suit against The Gap in federal court.

Hankins brought her action under both the Americans With Disabilities Act (ADA) and Kentucky state law. After discovery was completed, the district court granted The Gap’s motion for summary judgment, holding that Hankins was not “an otherwise qualified individual with a disability.” Opinion and Order, No. 93-172, at 4-9 (E.D.Ky. Jan. 10, 1995). In addition, the district court found that plaintiff had failed to make a prima facie case of discrimination based on disparity of treatment. Having dismissed plaintiffs federal claims, the district court dismissed her state law claims without prejudice. Hankins timely filed a notice of appeal.

II. REASONABLE ACCOMMODATION UNDER THE AMERICANS WITH DISABILITIES ACT

A district court’s grant of summary judgment is reviewed de novo. City Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir.1994). Considering all facts and inferences drawn therefrom in the light most favorable to the appellant, id., we reverse the judgment only upon a showing of the existence of a genuine issue of material fact, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In this case, we are faced with a claim under Title I of the ADA, which prohibits unwarranted discrimination against disabled persons in employment. See 42 U.S.C. § 12112(a). The key term, “discriminate,” is defined in section 12112(b) as including several acts, of which the most relevant to this litigation is:

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.j

A “qualified individual with a disability,” in turn, is an individual who, with reasonable accommodation, “can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). “Reasonable accommodation” thus lies at the heart of this case, as in most ADA cases. It is given further definition in 42 U.S.C. § 12111(9):

The term “reasonable accommodation” may include—

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Hankins argues that The Gap’s refusal to transfer her to “Pikpak” or “Shoes,” once it became aware of her disability, was a failure to provide reasonable accommodation. The Gap responds that neither “Pikpak” nor “Shoes” would have been a reasonable accommodation because (1) “Pikpak” was located in a hotter, brighter, busier, and noisier area than Hankins’s customary assignment and was unsuitable for anyone suffering from migraines, (2) “Pikpak” operated at most once or twice a week, and even less often during the shift Hankins wanted to work, and (8) “Shoes” required even greater accuracy than Hankins’s customary area, such that the probability of inaccurate picking by Hankins precluded her from working in “Shoes.” Hankins does not dispute any of these points, and thus The Gap’s contention that “Pikpak” and “Shoes” were not reasonable accommodation is actually quite persuasive. In reality, however, it does not matter whether “Pikpak” or “Shoes” would have been a reasonable accommodation, so long as The Gap made available other reasonable and effective accommodations to Hankins. The Appendix to the ADA regulations explains that “the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide.” 29 C.F.R. pt. 1630, app. at 415. As the Supreme Court has held in analogous circumstances, an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69, 107 S.Ct. 867, 371-72, 93 L.Ed.2d 305 (1986). Although an employee is not required to accept an offered accommodation, “if such individual rejects a reasonable accommodation ... that is necessary to enable the individual to perform the essential functions of the position ... the individual will not be considered a qualified individual with a disability.” 29 C.F.R. § 1630.9(d).

Philbrook was an employment discrimination case under Title VII of the Civil Rights Act of 1964, but we believe that its reasoning regarding alternate reasonable accommodations is fully applicable to actions under Title I of the ADA. In the instant case, The Gap did provide alternate reasonable accommodations to Hankins, mainly in the form of leave time. As The Gap points out, Hankins had available to her paid sick leave, paid personal days, a voluntary time off program, and ample and flexible vacation time, all of which she left virtually untouched. In addition, Hankins could have received treatment for her migraines — including resting time — at the company medical center, which she never attempted to receive. The EEOC specifically mentions the use of paid and unpaid leave as a potential form of reasonable accommodation, see 29 C.F.R. pt. 1630, app. at 407, and Hankins does not disagree that the use of leave was a possible accommodation. On appeal, however, Hankins tries to argue that the company never adequately “notified” her of these possibilities. Even if this contention were true, it should nonetheless have been self-evident to Han-kins that going to the medical center or asking for time off is what she needed to do when a migraine occurred. The most logical way for Hankins to have removed herself from the company’s progressive discipline track would have been to stop working whenever she felt “extremely disoriented” by her headaches or medication. She states that she “would have difficulty reading [her] ‘picking ticket’ ” during her headaches and “was prone to making even more mistakes.” Han-kins Aff. ¶ 9. She argues that the errors which led to her warnings were directly attributable to the headaches and to her required medication. Given the direct correlation between her migraine headaches and her warnings for inaccuracy, it was entirely unreasonable for her to attempt to work during these headaches and thereby commit further errors.

We note that plaintiffs argument that her supervisors never suggested she take time off is contradicted by one of her own supporting affidavits. Her daughter, Shirley Bittner, states, “From time to time during this period, either Kloska or Fox would ask me or my sister to take my mother home early from work because of the onset of a severe headache.” Bittner Aff. 17. As Bitt-ner explains, “Because she needed to work and could not afford to take any more time off, my mother tried to work through these headaches whenever she could.” Id. ¶6. Hankins’s own insistence on working when she had a migraine headache thus seems to belie the claim that she would have taken advantage of provided accommodations if only she had been explicitly informed of their existence.

At any rate, whether or not her supervisors recommended that she stop working during her headaches is not dispositive, because such actions would only have belabored the obvious. While it is true that an employer should normally advise an employee of available accommodations once the employee informs the employer that an accommodation is needed, it is equally true that an employer has no duty to reiterate self-evident options to an employee when she is clearly already aware of them. In this case, there is a genuine dispute over whether Han-kins actually notified The Gap about her migraines and requested a transfer to “Pikpak” or “Shoes,” but there is certainly no dispute over whether she knew about accommodations that already existed. She admits she knew about the availability of paid and unpaid medical leave, voluntary time off, personal days, and vacation days, as she had occasionally taken such leave in the past. Hankins also knew about the availability of the company medical center because she went there 29 times over the course of her employment. None of these visits was for a migraine headache, however. Hankins does not contest The Gap’s assertion that other migraine-afflicted employees were adequately accommodated through these programs and services. Hankins does not claim that any application for leave was ever denied to her. Finally, Hankins admits that she never paid any attention to The Gap’s posted notices regarding her rights under the ADA. Given the apparentness of available accommodations, plaintiffs contention that she needed to be told explicitly about them is singularly unconvincing.

In summary, we hold that plaintiffs refusal to accept available reasonable accommodations precludes her from arguing that other accommodations should also have been provided. Although Hankins maintains that the district court committed a fundamental error when it found she was not a “qualified individual with a disability,” in reality, the district court was only following the ADA regulations with admirable precision. As noted earlier, § 1630.9(d) clearly states that a claimant “will not be considered a qualified individual with a disability” if she rejects reasonable accommodations that are necessary for her to perform the “essential functions” of her position. 29 C.F.R. § 1630.9(d). Hankins effectively rejected the obvious reasonable accommodations provided by The Gap, proposed other, more dubious accommodations instead, and was thus rendered incapable of maintaining accuracy, an essential function of the merchandise handler’s job. In other words, Hankins’s § 12112(b)(5)(A) claim was properly decided by the district court, because it presented the quintessential ease of an individual not “qualified” under 29 C.F.R. § 1630.9(d).

III. DISPARATE TREATMENT

Hankins next raises an argument based on 42 U.S.C. § 12112(b)(1). Section 12112(b)(1) sets forth an additional example of “discrimination” under the ADA, not related to providing reasonable accommodation: “limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such applicant or employee.” In Han-kins’s view, The Gap violated this provision by “favoring” certain employees, allowing them to transfer to “Pikpak” after receiving a warning for inaccuracy, while refusing to allow her to do the same. As the district court correctly found, however, Hankins did not present a prima facie case of disparate treatment. The only evidence Hankins produced to support her argument was that one employee was once transferred to “Pikpak” after receiving a written warning. Aside from the fact that this employee did not have migraine headaches, however, Hankins brought forward no evidence to show that she was treated less favorably than other employees because of her migraines. Indeed, Hankins failed to show she was treated any less favorably at all.' She admits that she herself was occasionally transferred to “Pikpak” after receiving both verbal and written warnings. As a result, the fact that another employee also experienced the same temporary transfer on a single occasion is hardly sufficient evidence of anything. Han-kins plainly has not presented a prima facie case under § 12112(b)(1).

IV. PENDENT STATE LAW CLAIMS

Hankins finally argues that the court abused its discretion when it dismissed her pendent state law claims. Hankins is correct that abuse of discretion is the relevant standard of review. See Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.1993). Hankins is incorrect, however, that any such abuse can be found here.

The supplemental jurisdiction statute, 28 U.S.C. § 1367, explicitly allows district courts to dismiss pendent state law claims if all federal claims have been dismissed:

(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
(3) the district court has dismissed all claims over which it has original jurisdiction ....

This court has further instructed district courts, before deciding whether to retain jurisdiction over the state claims, to “consider the interests of judicial economy and the avoidance of multiplicity of litigation and bal-anee those interests against needlessly deciding state law issues.” Landefeld, 994 F.2d at 1182. In addition, this court has stated that “generally, ‘if the federal claims are dismissed before trial ... the state claims should be dismissed as well.’” Id. (citing Taylor v. First of America Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir.1992)). Under these guiding principles, Hankins is unable to prevail. She fails to show how any substantial savings in judicial resources would be gained that outweigh the interest in avoiding the unnecessary resolution of state law issues. She points to no undue amount of wasted or duplicative effort that will result from having to re-file her claims in state court. Discovery has been completed in this case, and there is no reason to think that any additional discovery will be necessary should she refile her state claims in state court. In sum, Hankins has not shown an abuse of discretion.

The summary judgment is AFFIRMED.


author: BOYCE F. MARTIN, Jr., Circuit Judge.

text:
    Robert C. APARICIO, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Appellee.
    No. 95-3068.
    United States Court of Appeals, Sixth Circuit.
    Argued April 29, 1996.
    Decided May 30, 1996.

      Mark T. Coulter (argued and briefed), Robert N. Peirce, Jr. & Associates, Pittsburgh, PA Steve C. Foley, Robert E. Sweeney & Co., Cleveland, OH, for plaintiff-appellant.
    David W.. Stuckey (argued and briefed), Robison, Curphey & O’Connell, Toledo, OH, for defendant-appellee.
    Before: MARTIN and SILER, Circuit Judges; HEYBURN, District Judge.

       The Honorable John G. Heybum II, United States District Judge for the Western District of Kén-tucky, silting by designation.

   BOYCE F. MARTIN, Jr., Circuit Judge.

This is an appeal from a decision granting judgment as a matter of law to defendant Norfolk & Western Railway Company after the close of Robert Aparicio’s case during the trial of his claim under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (1988). Aparicio appeals the district court’s decision granting judgment as a matter of law to Norfolk & Western and raises two other issues on appeal. For the following reasons, we REVERSE in part and AFFIRM in part the decision of the district court and REMAND for retrial.

Beginning in 1976, Aparicio worked as a track maintenance laborer for Norfolk & Western until his resignation in January of 1994. Aparicio worked on the “maintenance of way” crew, and his responsibilities included making repairs to the track and railroad crossings. Aparicio’s work required him to work with many types of tools such as air tampers, jack hammers, impact wrenches, claw bars, anchor wrenches, grinders, and spiking guns. Between 1987 and 1990 Apari-cio changed duties on the crew, and his primary job during that period was to sit and operate the controls of heavy machinery. After 1990, Aparicio returned to his “hands on” duties as a track maintenance laborer.

As early as 1987, Aparicio visited Dr. John Osborne, complaining of numbness and tingling in his right hand. Dr. Osborne recommended conservative treatment and the symptoms resolved themselves. Aparicio returned to work in six weeks and did not have any more difficulty for approximately five years. In late January 1992, Aparicio again sought Dr. Osborne’s help regarding pain in both of his hands and wrists. Dr. Osborne referred Aparicio to Dr. Patrick Murray, an orthopedic surgeon, who diagnosed carpal tunnel syndrome. Dr. Murray performed four surgeries on Aparicio for his condition and Aparicio returned to work on May 1, 1992. In September 1993, Aparicio was having pain in his right elbow. Dr. Murray diagnosed epicondylitis (“tennis elbow”). After several months of treatment, Dr. Murray concluded that Aparicio could not return to work. Aparicio has not worked since January 1994.

Aparicio filed suit in May 1993 under Section 51 of the Federal Employers’ Liability Act. Section 51 of the Federal Employers’ Liability Act provides in pertinent part that:

Every common carrier by railroad while engaging in [interstate or international] commerce ..., shall be hable in damages to any person suffering injury [or death] while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the [officers, agents, or employees] of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

Aparicio’s complaint alleged that his injuries were due to his job duties, which exposed him to “excessive and harmful cumulative trauma to his hands, wrists and arms due to the equipment with which he performed his work for the defendant.” Aparicio claimed that Norfolk & Western failed to use ordinary care to provide him with a reasonably safe work environment by requiring him to do work in a way that exposed his upper extremities to repetitive trauma. Aparicio further contended that Norfolk & Western was negligent by not evaluating the trauma to his upper body, by not redesigning his job functions or tasks in a more ergonomically sound manner and by not advising him of the risk of developing carpal tunnel syndrome.

Norfolk & Western moved for summary judgment, claiming that Aparicio’s action was time-barred by the three-year statute of limitations in Federal Employers’ Liability Act actions because Aparicio should have known in 1987 that his injuries were work-related. As discussed below, the district court granted the motion in part and denied it in part. The case proceeded to trial on the theory that Aparicio could recover if the jury found that his 1992 injuries were separate from his 1987 injury to his right hand.

The trial began on December 19,1994. At the close of Aparicio’s case, Norfolk & Western moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). The district court granted the motion, concluding that the record was “barren of any evidence tending to prove negligence.” Aparicio now appeals, challenging the district court’s decision to grant judgment as a matter of law to Norfolk & Western, to grant partial summary judgment to Norfolk & Western, and to exclude some testimony evidence.

I.

We review de novo a district court’s decision to grant judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a), Snyder v. Ag Trucking, Inc., 57 F.3d 484, 490 (6th Cir.1995), applying the same standard as did the district court. Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, — U.S.-, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). Federal Rule of Civil Procedure 50(a) provides that:

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law.

Unless otherwise prescribed by law, we have held that a district court should grant a motion for judgment as a matter of law if “there is either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable persons could differ.” Monette v. AM-7-7 Baking Co., 929 F.2d 276, 280 (6th Cir.1991) (citation omitted). Without weighing the evidence or judging the credibility of witnesses, and drawing all inferences in favor of the non-moving party, a district court usually undertakes to determine whether there is sufficient evidence to permit reasonable jurors to find for the non-moving party. Cook v. American Steamship Co., 53 F.3d 733, 740 (6th Cir.1995) (citation omitted). Where the defendant has moved for judgment as a matter of law at the close of the plaintiffs case, this standard requires the district court to decide whether a reasonable jury could conclude that the plaintiff has not proven an element of his or her case. The “reasonableness” inquiry upon a defendant’s motion for judgment as a matter of law is not determined by asking whether the plaintiff has proven his or her case by a preponderance of the evidence because the defendant has not yet presented any proof. Rather, a court looks only to the plaintifPs evidence to make its determination.

A different standard applies in Federal Employers’ Liability Act cases. The Supreme Court has held that a jury question is created in a Federal Employers’ Liability Act ease if

the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due “in whole or in part” to its negligence.

Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957) (footnotes omitted); see also Green v. River Terminal Ry. Co., 763 F.2d 805, 806-07 (6th Cir.1985) (same, quoting Rogers). While the Rogers standard for the quantum of evidence also uses the language of “reasonableness,” the content of the Rogers “justify with reason” standard is informed more by the public policy behind the Federal Employers’ Liability Act rather than by an abstract notion of “reasonableness.” Consequently, no appellate court has approved of applying the customary “reasonableness” standard when a district court is faced with a motion for judgment as a matter of law in a Federal Employers’ Liability Act case.

The Supreme Court has observed that Congress, in enacting the Federal Employers’ Liability Act, intended it to be a departure from common law principles of liability as a “response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety.” Sinkler v. Missouri Pac. R.R. Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Consolidated Rail Corp. v. Gottshall, — U.S.-,-, 114 S.Ct. 2396, 2404, 129 L.Ed.2d 427 (1994) (stating that through the Federal Employers’ Liability Act “Congress crafted a federal remedy [for railroad workers] that shifted part of the ‘human overhead’ of doing business from employees to their employers”) (citations omitted). This Court has called the Federal Employers’ Liability Act a “remedial and humanitarian statute ... enacted by Congress to afford relief to employees from injury incurred in the railway industry.” Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir.), cert. denied, 414 U.S. 1040, 94 S.Ct. 541, 38 L.Ed.2d 331 (1973). Describing Congress’s preference that facts in Federal Employers’ Liability Act cases be determined by a jury, the Supreme Court observed in Rogers that “decisions of this Court after the 1939 amendments [to the Federal Employers’ Liability Act] teach that the Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee’s injury.” 352 U.S. at 510, 77 S.Ct. at 451; see also Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943) (noting that the “right to trial by jury is ... part and parcel of the remedy afforded railroad workers under the [Federal] Employers’ Liability Act”). Because the benefit of a jury trial is considered to be “a goodly portion of the relief’ which Congress has afforded railroad workers under the Federal Employers’ Liability Act, Bailey, 319 U.S. at 354, 63 S.Ct. at 1064, the jury should determine liability so long as the evidence justifies with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury. Nevertheless, despite Congress’s desire to preserve a plaintiffs right to a jury trial in Federal Employers’ Liability Act cases, “it is still the function of the trial judge within narrowly prescribed limits ... to pass upon the sufficiency of the evidence.” Green, 763 F.2d at 807 (quoting Fritts v. Toledo Terminal R.R. Co., 293 F.2d 361, 363 (6th Cir.1961)).

Aparicio argues that in a Federal Employers’ Liability Act case, judgment as a matter of law can be directed only in the complete absence of any probative facts. Aparicio is not correct. While the Supreme Court has made it clear on more than one occasion since Rogers that an employer subject to the Federal Employers’ Liability Act need be only slightly negligent in order to be liable to a plaintiff, Gottshall, — U.S. at-, 114 S.Ct. at 2404, the question has remained as to the quantum of evidence a Federal Employers’ Liability Act plaintiff must present to overcome a motion for judgment as a matter of law. Specifically, courts have struggled with the question of whether a Federal Employers’ Liability Act plaintiff need present only slight evidence or a scintilla of evidence as to each element of his or her claim in order to withstand a motion for judgment as a matter of law, or whether a plaintiff must present something more than that.

Prior to Rogers, the Supreme Court required something more than a scintilla of evidence tending to show negligence. Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). In Brady, the Court held that:

The weight of the evidence under the Employers’ Liability Act must be more than a scintilla before the case may be properly left to the discretion of the trier of fact — in this case, the jury. When the evidence is
such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. By such direction of the trial the result is saved from the mischance of speculation over legally unfounded claims.

320 U.S. at 479, 64 S.Ct. at 234 (citations omitted). After Rogers, however, some members of the Supreme Court interpreted Rogers as requiring only a scintilla of evidence to prove negligence. In a dissenting opinion in Sinkler v. Missouri Pac. R.R. Co., Justice Harlan interpreted Rogers as requiring a Federal Employers’ Liability Act plaintiff to present only a scintilla of evidence as to each element of the claim in order to create a jury question. Justice Harlan wrote:

This case is a further step in a course of decisions through which the Court has been rapidly converting the Federal Employers’ Liability Act ... into a workmen’s compensation statute.
This progress recently gained marked momentum with Rogers v. Missouri Pacific R. Co. ... decided in the 1956 Term, where the Court in effect established a “scintilla” rule in these cases for judging the sufficiency of the evidence on the issue of “causation.” In subsequent decisions that rule has been extended, sub silentio, to cover also the issue of “negligence.” More recently in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958) ... decided a few months ago, the Court still further expanded these enactments to embrace a concept of absolute liability for violation of any statutory duty occasioning injury to one entitled to sue under them.

356 U.S. at 332-33, 78 S.Ct. at 763-64 (footnote omitted) (J. Harlan, dissenting, joined by J. Frankfurter); Harris v. Pennsylvania R.R. Co., 361 U.S. 15, 27, 80 S.Ct. 22, 30, 4 L.Ed.2d 1 (1959) (J. Harlan, dissenting, joined by J. Whittaker) (“I cannot understand how on this record even the ‘scintilla’ rule of Rogers and its progeny, ... can be thought to justify the overturning of this judgment.”). A majority of the Supreme Court since Rogers, however, has not defined in a more precise manner the quantum of evidence a Federal Employers’ Liability Act plaintiff must produce in order to withstand a defendant’s motion for judgment as a matter of law.

Appellate courts have not uniformly understood Rogers as requiring a Federal Employers’ Liability Act plaintiff to present only a scintilla of evidence to overcome a motion for judgment as a matter of law. The Seventh Circuit has embraced the scintilla rule. See Harbin v. Burlington Northern R.R. Co., 921 F.2d 129, 131 (7th Cir.1990) (holding that a trial judge “must submit an [FELA] case to the jury when there is even slight evidence of negligence”). More federal courts have rejected the scintilla rule. See Mullahon v. Union Pac. R.R., 64 F.3d 1358, 1364 (9th Cir.1995) (rejecting the scintilla rule and stating that the test for submitting a Federal Employers’ Liability Act ease to a jury is whether it is “not outside the possibility of reason” that the evidence supports the plaintiffs case) (citation omitted); Brown v. CSX Transp., Inc., 18 F.3d 245, 248 (4th Cir.1994) (adopting a “substantial evidence” standard in order to submit a Federal Employers’ Liability Act ease to the jury) (citation omitted); Gill v. Pennsylvania, 201 F.2d 718,

720 (3d Cir.), cert. denied, 346 U.S. 816, 74 S.Ct. 27, 98 L.Ed. 343 (1953) (applying the Brady quantum of evidence standard).

This Circuit has not specifically addressed the issue of the quantum of evidence a Federal Employers’ Liability Act plaintiff must present as to each element of his or her claim in order to withstand a defendant’s Rule 50(a) motion. In Rodriguez v. Delray Connecting R.R., this Court refused to adopt the scintilla rule and affirmed the district court under the “justify with reason” standard of Rogers. 473 F.2d 819, 820 (6th Cir.1973). In Rodriguez this Court observed that

[t]he quantum of fault necessary to support a finding of employer liability was resolved by the Supreme Court in Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 wherein the Court stated: “Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.”_ Dean Prosser has written that under this test jury verdicts for the employee can be sustained upon evidence which would not be sufficient in an ordinary negligence action. Prosser, Torts (4th ed.1971) § 80 p. 536. Professor Moore argues that where this minimal amount of evidence is sufficient to withstand a motion for a directed verdict, the federal courts in fact, if not in name, have adopted the “scintilla rule.” 5A Moore’s Federal Practice ¶50.02[1]; See Harlan, J., dissenting in Ferguson v. Moore-McCormick Lines, 352 U.S. 521, 563-564, 77 S.Ct. 459, 480-481, 1 L.Ed.2d 515 (1957) . While we expressly disclaim any intention of adopting this rule in this Circuit, we conclude that under the foregoing Supreme Court decisions we cannot say that the District Court committed reversible error in denying the railroad’s motion for a directed verdict.

Id. (emphasis added). Thus, after Rodriguez, the precise quantum of proof required of a Federal Employers’ Liability Act plaintiff to withstand a motion for judgment as a matter of law in this Circuit was not certain.

In 1987, this Court stated that the Brady “more than a scintilla” standard applied for determining whether a plaintiffs claim under the Federal Safety Appliance Act, 45 U.S.C. § 1, should be submitted to a jury. Erskine v. Consolidated Rail Corp., 814 F.2d 266, 269 (6th Cir.1987). The Supreme Court has observed that the Federal Safety Appliance Act does not create a cause of action, but that the cause of action under that statute is created by the Federal Employers’ Liability Act. Crane v. Cedar Rapids & Iowa Ry. Co., 395 U.S. 164, 166, 89 S.Ct. 1706, 1708, 23 L.Ed.2d 176 (1969). Thus, arguably, Erskine answers the question left unresolved in Rodriguez. Because we did not discuss the effect of Rogers and its progeny on the Brady standard in Erskine, we take the opportunity to clarify the Brady standard now in light of these cases.

With all due respect to Justice Harlan’s view of Rogers, we believe that the “more than a scintilla” rule of Brady is still the standard governing the quantum of evidence a plaintiff in a Federal Employers’ Liability Act case must present in order to withstand a Rule 50(a) motion. Our disagreement with Justice Harlan, however, may be based upon a distinction without a difference. “More than a scintilla” means precious little more than a scintilla given the Supreme Court’s view that Congress has favored Federal Employers’ Liability Act plaintiffs with a jury resolution of all color-able factual issues. Rogers, 352 U.S. at 510, 77 S.Ct. at 451. Thus, we hold that Brady and Rogers require a Federal Employers’ Liability Act plaintiff to present more than a scintilla of evidence in order to create a jury question on the issue of employer liability, but not much more.

A Federal Employers’ Liability Act plaintiff must “prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Adams v. CSX Transp., Inc., 899 F.2d 536, 539 (6th Cir.1990) (quoting Robert v. Consolidated Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)). A plaintiff must present more than a scintilla of evidence to prove that (1) an injury occurred while the plaintiff was working within the scope of his or her employment with the railroad, (2) the employment was in the furtherance of the railroad’s interstate transportation business, (3) the employer railroad was negligent, and (4) the employer’s negligence played some part in causing the injury for which compensation is sought under the Act. Green, 763 F.2d at 808. We now turn to the elements of Apar-icio’s claim—duty, breach, foreseeability, and causation—to determine if judgment as a matter of law was warranted.

Duty and Breach. The Supreme Court in Urie v. Thompson stated that railroads have a duty to furnish employees with a “reasonably safe place in which to work and such protection [against the hazard causing the injury] as would be expected of a person in the exercise of ordinary care under those circumstances.” 337 U.S. at 179 n. 16, 69 S.Ct. at 1029 n. 16, (citing Sadowski v. Long Island R.R. Co., 292 N.Y. 448, 55 N.E.2d 497, 501 (1944)). The Court continued by noting that “[o]rdinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect_ It must be commensurate with known dangers.” Id. (quoting Sadowski, 55 N.E.2d at 500). However, “known dangers” does not mean that the injury must have occurred on a previous occasion to the same or a similarly situated worker. Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).

While a railroad has a duty to use ordinary care to protect employees from known dangers, Urie v. Thompson also established that a railroad breaches its duty to its employees by failing to provide a safe working environment if it knew or should have known that it was not acting adequately to protect its employees. “[W]e think that negligence, within the meaning of the Federal Employers’ Liability Act, attaches] if the [employer] ‘knew, or by the exercise of due care should have known,’ that prevalent standards of conduct were inadequate to protect petitioner and similarly situated employees.” Urie, 337 U.S. at 178, 69 S.Ct. at 1028. In Green, we stated that “[t]he defendant’s duty [in a Federal Employers’ Liability Act case] is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances.” 763 F.2d at 809 (citations omitted).

Norfolk & Western argues that it could not have breached its duty to Aparicio because there are no standards regarding ergonomics set forth by the Federal Railroad Administration. It argues further that there are no standards recognized by the scientific community to determine whether a particular person was exposed unreasonably to a risk of developing carpal tunnel syndrome or epicondylitis, and that Aparicio failed to put forth any evidence to show that it breached any standard of care. Norfolk & Western also argues, without controlling authority, that, for it to have breached any duty of care to Aparicio, it would have to have had actual or constructive notice that Aparicio’s work conditions would cause the alleged injury. Norfolk & Western believes that, at most, the evidence permits the conclusion that it was aware of general studies regarding carpal tunnel syndrome and epicondylitis, “none of which related these conditions to the jobs Aparicio performed.” Norfolk & Western also argues that it had no notice, and therefore no duty, because it had received no other complaints from employees regarding carpal tunnel syndrome and epicondylitis.

The fact that a regulatory body has not issued any applicable ergonomic standards does not relieve Norfolk & Western of its duty to provide a workplace safe from foreseeable conditions which might pose a danger to its workers. The standard of care is whether Norfolk & Western acted as a reasonably prudent employer, not whether it complied with any applicable regulations. The testimony of Dr. Robert Andres, Apari-cio’s ergonomics expert, shows that there were ergonomic risk factors and known remedial measures that had been described and accepted by the scientific community. This information was widely published in trade and scientific journals. A jury could accept Dr. Andres’ testimony and find that a reasonably prudent employer would have known about the risk factors and taken steps to ameliorate them. In addition, the law does not impose a duty on an employer to address a safety hazard or risk only in the event that a similar injury has occurred before from the same cause.

Construing the evidence in a light favorable to Aparicio, he has presented more than a scintilla of evidence to show that Norfolk & Western should have known that he was at risk for developing an upper extremity cumulative trauma injury and that a reasonably prudent employer would have taken steps to ameliorate the risk of injury. Dr. Andres testified as to the risk factors accepted in the biomechanical and ergonomics community for upper extremity cumulative trauma disorders such as carpal tunnel syndrome and epicondylitis. These risks factors include sustained exertion, such as holding something for a long period of time and applying force, placing hands in positions not in line with the forearm, and being subjected to vibrations from power tools. JA at 171-78; 185-92. Dr. Andres also testified that an industrial employer like Norfolk & Western would learn of these ergonomic risk factors, as well as of methods of determining whether an employee was exposed to a risk of injury and methods of amelioration, through scientific and professional publications, trade journals and industry publications. Further, Dr. Andres stated that an employer like Norfolk & Western would know of the ergonomic literature through its medical department or safety person. J.A at 193; 200-201.

From the depositions of Norfolk & Western’s medical director, Ray Prible, M.D., and former medical director from 1987 to 1994, John Salb, M.D., the jury would learn that Norfolk & Western had an “ergonomics program” which included the identification of risk factors, and amelioration of the risk factors through engineering changes or administrative controls (job rotation and breaks). J.A. at 348-49. Dr. Salb was aware of professional articles being published about carpal tunnel syndrome and repetitive or forceful activities in the workplace as early as the 1970’s. Dr. Prible testified that he understood that risk factors “are things that you do that could potentially put you in a position of having problems down the road.” JA at 345. Dr. Prible also testified that, as medical director of Norfolk & Western, if it came to his attention that a worker suffered from carpal tunnel syndrome because of work, he would either go out to the workplace himself or send Norfolk & Western’s safety person to investigate the job. JA at 346. Aparicio testified that in 1992 he informed Norfolk & Western in writing that he had carpal tunnel syndrome because of his work (Plaintiff’s Exhibit 4), but that defendant returned him to the same job duties with no modifications after his surgeries. Aparicio’s evidence could justify with reason a finding that, in the exercise of due care, Norfolk & Western should have known that Aparicio’s job duties put him at risk for developing a cumulative trauma disorder such a carpal tunnel syndrome or epicondyli-tis. A jury could also find, based on the depositions of Drs. Prible and Salb, that Norfolk & Western breached its duty by not evaluating Aparicio’s job and taking remedial measures in that it knew or should have known that he was exposed to repetitive shocks and vibration from his tools that put him at risk for cumulative trauma disorders.

Causation and Foreseeability. Aparicio contends that he presented probative evidence as to the issues of causation and foreseeability. The test for causation in Federal Employers’ Liability Act eases is whether an employer’s actions played any part at all in causing the injury. “[T]he causation test is whether ‘employer negligence played any part, even the slightest, in producing the injury5 for which the plaintiff seeks recovery.” Adams, 899 F.2d at 539 (quoting Rogers, 352 U.S. at 506, 77 S.Ct. at 448). On the issue of causation, Norfolk & Western argues that Dr. Murray did not testify that Aparicio’s job caused his conditions and, furthermore, that Dr. Andres was not called to testify on the issue of causation by work activities. No tests or experiments were performed regarding whether Aparicio’s work was the cause of his condition. Norfolk & Western argues that, “[t]he most that can be inferred from the evidence is simply that Aparicio developed these conditions at work.”

Given the “relaxed” standard of causation in Federal Employers’ Liability Act cases, Gottshall, — U.S. at-, 114 S.Ct. at 2404, we believe Aparicio has presented more than a scintilla of evidence to prove that Norfolk & Western’s breach of its duty to him was a causal factor, at least in small part, of his injuries. Favorably construed, Dr. Prible’s deposition would permit an inference that a person with a risk factor for an injury or illness may result in the person with the risk factor developing the injury or illness. JA at 345-46. Aparicio and his crew co-worker John Powers testified extensively about the repetitive vibrations and shocks to which workers on the maintenance crew were daily exposed from the various power tools. JA at 82-85 (Aparicio); 336-338; 341^42 (Powers). Dr. Salb’s evidence tends to prove that Norfolk & Western was aware of the oecupa-tional hazard of repetitive motion injury and that Norfolk & Western would take corrective measures to prevent such injuries. J.A at 352-53. Dr. Salb’s statements also show that some of the tools Aparicio worked with — jack hammers, tampers and impact wrenches — caused vibrations and that a remedial measure to protect against excessive vibration would be to put an anti-vibratory wrap on the handles of such tools. J.A. at 355. This evidence was sufficient to create a jury question as to whether Norfolk & Western’s negligence may have caused, even in some small way, Aparicio’s injuries. To say that the evidence is sufficient to create a jury question does not mean, of course, that a jury will ultimately find that Norfolk & Western’s negligence caused Aparicio’s injuries under the preponderance standard applicable when the case is submitted to the jury. Morrison v. New York Cent. R.R. Co., 361 F.2d 319, 320-21 (6th Cir.1966); see also Hausrath v. New York Cent. R.R. Co., 401 F.2d 634, 637-38 (6th Cir.1968) (discussing Morrison).

On the issue of foreseeability, Norfolk & Western reads the Supreme Court’s decision in Gallick v. Baltimore & Ohio R.R. as holding that previous incidents of injury are not required for the injury to be foreseeable if there is other evidence of foreseeability. Norfolk & Western insists that it simply had no reason to believe that Aparicio was susceptible to developing carpal tunnel syndrome and epicondylitis from his work duties. As stated above, Gallick held that even if direct causation is proven, a Federal Employers’ Liability Act case is not over. Reasonable foreseeability of harm must also be determined. 372 U.S. at 117, 83 S.Ct. at 665 (stating that “reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence”). Although the Supreme Court in Gallick does not discuss in detail a definition of “reasonable foreseeability” in terms of the degree of certainty, the Court in Gallick disapproved of any definition of foreseeability requiring that a similar incident have occurred previously. 372 U.S. at 120, 83 S.Ct. at 667. Neither do we find a requirement in Gallick that there must be some other evidence of foreseeability if a similar injury has not occurred previously to another worker.

Regarding the degree of certainty to which a railroad must anticipate harm in order to be held liable, the Supreme Court has discussed foreseeability using the term “likelihood.” In Rogers, the Supreme Court approved a jury finding where the probative facts supported the conclusion that “respondent [railroad] was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, would suffer just such an injury as he did.” Rogers, 352 U.S. at 503, 77 S.Ct. at 447 (footnote omitted); Ringhiser v. Chesapeake & Ohio Ry. Co., 354 U.S. 901, 903, 77 S.Ct. 1093, 1095, 1 L.Ed.2d 1268 (1957) (same, citing Rogers). While the Court in Gallick approved of this definition of foreseeability in Rogers, it went so far as to state that, in a Federal Employers’ Liability Act case, “a tortfeasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act.” 372 U.S. at 121, 83 S.Ct. at 667. As this Court has observed, “[t]he test for foreseeability does not require that the negligent person should have been able to foresee the injury in the precise form in which it in fact occurred. Rather it is sufficient if the negligent person might reasonably have foreseen that an injury might occur....” Green, 763 F.2d at 808 (citing Miller v. Cincinnati New Orleans & Texas Pac. Ry. Co., 203 F.Supp. 107, 113 (E.D.Tenn.1962), aff'd, 317 F.2d 693 (6th Cir.1963)).

In this case the district court stated that The test of foreseeability is whether, in light of all of the circumstances, a reasonably prudent railroad should or could reasonably have anticipated that some injury would result to an employee under the circumstances, at said time and place, from any act or negligence of the Defendant.

J.A. at 47 (emphasis added). The district court required a degree of certainty not found in the Supreme Court’s statements regarding the nature of foreseeability in Federal Employers’ Liability Act cases. Certainly, a railroad need not anticipate that an injury would result from its actions, but must only reasonably anticipate that the injury is likely to result. Aparicio has presented more than a scintilla of evidence tending to prove that Norfolk & Western could reasonably have anticipated that a track laborer such as Aparicio working with the tools he was assigned to use was likely to develop an upper extremity cumulative trauma injury.

Based on the foregoing, the district court erred in granting judgment as a matter of law to Norfolk & Western. Aparicio has presented more than a scintilla of evidence so as to create a jury question regarding each element of his Federal Employers’ Liability Act claim.

II.

Our review of a district court’s decision to grant summary judgment is de novo. Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1835, 128 L.Ed.2d 463 (1994). The district court granted summary judgment to the railroad on two statute of limitations issues. Section 56 of the Federal Employers’ Liability Act requires an employee to bring an action “within three years from the day the cause of action accrued.” As the Seventh Circuit stated in Fries v. Chicago & Northwestern Transp. Co., 909 F.2d 1092 (7th Cir.1990),

[a]ccrual is defined in terms of two components, the injury and its cause, for [Federal Employers’ Liability Act] statute of limitations purposes. In Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), the Supreme Court stated that when the specific date of injury cannot be determined because an injury results from continual exposure to a harmful condition over a period of time a plaintiffs cause of action accrues when the injury manifests itself. Id. at 170, 69 S.Ct. at 1025.... In [United States v.] Kubrick, [444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) ] ... [t]he Court stated that once a plaintiff is in possession of the critical facts of both injury and governing cause of that injury the action accrues even though he may be unaware that a legal wrong has occurred. Id. at 122-23, 100 S.Ct. at 359-60.

Id. at 1095 (emphasis in original). The Seventh Circuit concluded that “a cause of action accrues for [Federal Employers’ Liability Act] statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause.” Fries, 909 F.2d at 1095-96.

The district court ruled that Aparicio’s claim for his 1987 injury was time-barred because he knew at that time that his injury was work-related. Indeed, in his deposition Aparicio stated that Dr. Osborne told him that his injury was work-related. Aparicio later submitted an affidavit stating that he was mistaken about what Dr. Osborne had told him and that in actuality he was unaware of the cause of his injury until 1992. Based on this Court’s holding in Farrell v. Automobile Club, the district court properly struck the affidavit, leaving no material factual dispute regarding Aparicio’s knowledge that his 1987 injury to his right hand was work-related. 870 F.2d 1129, 1132 (6th Cir.1989) (holding that a party who has been examined at length by deposition may not rely on an affidavit filed to contradict the deposition evidence to create a genuine issue of fact so as to defeat a motion for summary judgment) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). Summary judgment was properly granted on this issue in so far as it relates to any injury in his right hand and wrist from 1987.

The district court denied summary judgment to Norfolk & Western because Aparicio created a disputed issue of fact as to whether his 1992 injuries were a separate injury or a continuation of his 1987 injury. The affidavit of another physician, Dr. Cohen, opined that Aparicio’s 1992 injuries were separate from his 1987 injury. We agree that this affidavit created a genuine issue on a material fact for trial. If Aparicio’s injuries are a separate injury, then Aparicio’s claim is not time-barred.

Finally, Aparicio claimed that even if the jury found that his 1992 injuries were a continuation of his 1987 injury, he should still be allowed to recover on the theory that Norfolk & Western negligently aggravated his 1987 injury in 1992, thus creating a sever-able claim for trial. Rejecting the argument that any aggravation of an injury is a severa-ble cause of action in a Federal Employers’ Liability Act case, the district court ruled that “if Plaintiff’s carpal tunnel syndrome condition in 1992 was an aggravation of the condition in 1987, then the limitations period would bar the claim.” In so holding, the district court rejected the position of the Third Circuit in Kichline v. Consolidated Rail Corp., 800 F.2d 356 (3d Cir.1986) (holding that a Federal Employers’ Liability Act plaintiff may recover for damages for aggravation of his original pulmonary disease/injury if he could prove that the railroad was negligent in permitting him to continue to be exposed to diesel fumes). We agree that an aggravation of an original injury that is claimed to have been caused by an employer’s negligence is not a severable action under the Federal Employers’ Liability Act.

We believe that the Seventh Circuit has stated the better view. In Fries, the Seventh Circuit observed that the fact that an injury “has not reached its maximum severity ... but continues to progress” does not relieve the plaintiff of the duty to use reasonable diligence to discover the original injury and its cause. 909 F.2d at 1096. Any “aggravation” of the original negligently caused injury would only affect the plaintiffs damages, and would not require a separate determination of liability or causation. Furthermore, a rule permitting severability of a claim that an original, continuing injury has been aggravated would contravene the purpose of the discovery rule articulated in Urie requiring Federal Employers’ Liability Act plaintiffs to use reasonable diligence to discover the cause of an injury once the injury manifests itself. Thus, we disagree with the Third Circuit that the aggravation of an original injury is a severable cause of action under Federal Employers’ Liability Act.

III.

Finally, we cannot review Aparicio’s challenge to the district court’s decision to exclude Dr. Andres to answer the question found at TR 177-79. Aparicio made no offer of proof after the court excluded the evidence as required by Federal Rule of Evidence 103. Thus, Aparicio may not bring this claim on appeal. Fed.R.Evid. 103(a) (stating that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and ... [an offer of proof is made]”).

Based on the foregoing, we REVERSE the district court’s decision granting judgment as a matter of law to Norfolk & Western Railway Company and REMAND for retrial. As to the district court’s summary judgment rulings, we AFFIRM.

      . The Seventh Circuit derived the rule that only slight evidence is required to create a jury question in a Federal Employer’s Liability Act case from the substantive requirement that only slight negligence by the employer will permit a recovery under the Act. 921 F.2d at 131 (discussing Rogers, 352 U.S. at 506, 77 S.Ct. at 448).

      . The Fourth Circuit in Brown followed the Supreme Court's pre-Rogers opinion in Brady v. Southern Ry. Co. in holding that a Federal Employers’ Liability Act plaintiff must present "substantial” evidence to create a jury question. The Fourth Circuit, thereby, equates Brady's “more than a scintilla" of evidence with "substantial” evidence.

      FN3. It should be noted that in pre-Rogers cases the Court stated that even in F.E.L.A. cases the plaintiff must present more than a scintilla of evidence before the ease may properly be submitted to the jury. Brady v. Southern Ry. Co., 320 U.S. 476, 479, 64 S.Ct. 232 [234], 88 L.Ed. 239 (1943); Western & Atlantic R.R. Co. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231 [232], 73 L.Ed. 473 (1929).

      . The Supreme Court has stated that federal common law controls what constitutes negligence under the Federal Employers’ Liability Act. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949) (footnote omitted).

      . In Gallick, the plaintiff was required to work near a stagnant pool infested with vermin and insects. Plaintiff received an insect bite which became infected and plaintiff was injured. The Supreme Court disapproved of a definition of “known dangers” or foreseeability requiring that a plaintiff's injury have resulted from a cause that had caused injuries to employees in the past. 372 U.S. at 121, 83 S.Ct. at 667.

      . Ergonomics is the "science of people performing work" and the study of the stresses on the human body which cause injury at work. J.A. at 163-65.

      . Q [Aparicio]: In [articles you read regarding carpal tunnel syndrome] that you referred to from the ’70’s, to your recollection, would they have referred to the possibilities of there being a connection between carpal tunnel syndrome and repetitive or forceful activities with the upper extremities?
      A [Dr. Salb]: I think that was the feeling at that time. Although I can remember a couple of women who were homemakers that had carpal tunnel syndrome.
      Q: During the period of time when you were with Norfolk [July 1987 through February 1994], ... did you ever implement through the medical department any type of plan or program to mitigate any risks of accumulative trauma disorders?
      A: Yes. And I think specifically it was such that if an employee complained about carpal tunnel or if he would have had a motion condition, we would ... evaluate work habits in the position and so forth and make recommendations, and I may get a medical report, may have gotten medical reports from the attending physicians to what his opinions were.
      And if we felt it was work oriented, changes might be made in the way the job was done and to create a better ergonomic condition or to put at that time laboratory sleeves on the machines or whatever they were using. So this was ongoing.
      Q: What period in time did this program begin?
      A: I think probably in the late '80’s, early '90’s.

        J.A. at 354-55.

      . We note that a different case is presented where an employer subject to the Federal Employers’ Liability Act aggravates an employee’s non-work related condition, disease or injury. See Cutter v. Cincinnati Union Terminal Co., 361 F.2d 637, 638-39 (6th Cir.1966).


author: COHN, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Judith A. PARRISH, Defendant-Appellant.
    No. 95-3788.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1996.
    Decided May 31, 1996.
    Christopher K. Barnes (briefed), Sharon J. Zealey (argued), Office of U.S. Attorney, Cincinnati, OH, for Plaintiff-Appellee.
    Elizabeth E. Agar (argued and briefed), Robert Scott Croswell, III, Croswell & Adams, Cincinnati, OH, for Defendant-Appellant.
    Before: KENNEDY and COLE, Circuit Judges; COHN, District Judge.

       The Honorable Avem Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation.

   COHN, District Judge.

This is a sentencing appeal. Defendant-appellant Judith Parrish (Parrish) pled guilty to mail fraud, 18 U.S.C. §§ 1341 and 1346, and was sentenced to 15 months imprisonment, two years supervised release, and a $10,000 fine. The fraud arose from a scheme in which Parrish received “commission” payments in exchange for recommending a certain subcontractor to her employer. The sentencing court, following USSG § 2F1.1 (Nov. 1994) and the recommendations in the presentence report, determined that the sentencing guidelines called for a sentencing range of 15 to 21 months imprisonment, 2 to 3 years supervised release, and a fine of $4,000 to $40,000.

Parrish argues on appeal that the sentencing court erred by enhancing the offense level on the basis of her fraudulent gain rather than on any loss her employer might have suffered. The government argues in response that the sentencing court correctly applied the sentencing guidelines. For the reasons which follow, Parrish’s sentence will be affirmed.

I.

A.

As part of the guilty plea, the government and Parrish agreed to a joint statement of facts which “sets forth the relevant facts and circumstances of the actual offense conduct and offender characteristics.” A summary of the joint statement follows.

Parrish was employed by Structural Dynamics Research Corporation (SDRC) from 1970 until November of 1992. SDRC is a software developer that, as part of its service to customers, prepares and distributes instruction, training and maintenance manuals. SDRC contracts with outside printing companies to produce the manuals. Parrish was a full-time, salaried administrative assistant, part of whose job duties included obtaining competitive pricing information from printers and recommending their approval. SDRC management made the final decision on whether to accept a particular bid from a printer.

Otto Zimmerman and Sons Company, Inc. (Zimmerman), was one of the printing companies used by SDRC. In 1982, Zimmerman offered to pay Parrish a 10% “commission” on each SDRC job it received, in exchange for her recommendation of Zimmerman to do the work. Zimmerman told Parrish that the “commission” resulted in reduced profits for Zimmerman rather than increased prices to SDRC, so SDRC would not be harmed by the payments. Parrish agreed to the arrangement, but did not disclose it to SDRC.

Over the next ten years, Zimmerman was awarded numerous printing contracts by SDRC. According to Parrish, who arranged the contracts and recommended them for approval, Zimmerman was the lowest bidder each time it was given a printing job. After Zimmerman was paid on each contract, it would mail to Parrish’s home a cheek for 10% of the contract price, accompanied by false invoices. Parrish paid federal income tax on this money, which totaled approximately $362,000.

SDRC did not become aware of the “commission” arrangement until 1992 when it instituted the investigation which led to the charge against Parrish. As a full-time, salaried employee of SDRC, Parrish was not authorized to solicit or receive any gifts, gratuities or commissions. She was a fiduciary of SDRC, and her receipt of the “commission” payments breached her fiduciary duty to SDRC and deprived it of its right (1) to know about Parrish’s receipt of the 10% “commission” payments and (2) to control how SDRC spent its money and conducted its business. The actual value of SDRC’s direct loss cannot be quantified because there is no evidence that Zimmerman charged SDRC more than it otherwise would have. Zimmerman was not charged with any criminal offense and on its own agreed to pay SDRC $460,000.

B.

1.

Parrish pled guilty to a one count information charging her with mail fraud, 18 U.S.C. §§ 1341 and 1346, which carries a maximum penalty of five years imprisonment, three years supervised release, a $250,000 fine, restitution and payment of a $50 special assessment. The plea agreement provided that Parrish would plead guilty to the information, cooperate fully with the government’s investigation, and pay a special assessment of $50. In exchange, the government agreed that any self-incriminating information Parrish revealed would not be used against her in sentencing, it would inform the court of the nature of the offense and of Parrish’s cooperation, and it would not prosecute Parrish for other possible non-tax violations arising from her arrangement with Zimmerman. Parrish acknowledged in the agreement that she could still be charged with perjury, that the sentencing determination was reserved solely to the court and could reach the maximum penalty allowed by law, and that the federal sentencing guidelines applied to the sentencing determination. Both Parrish and the government acknowledged that either party could appeal an unlawful or incorrect sentencing determination.

2.

In determining the sentence for Parrish’s fraud offense, the sentencing court applied USSG § 2F1.1. Section 2Fl.l(a) establishes a base offense level of 6 and subsection (b)(1) enhances the offense level in proportion to the amount of the loss caused by a defendant, i.e., “the value of the money ... or services unlawfully taken,” USSG § 2F1.1, comment, (n. 7). For determination of the amount of loss, Note 7 refers the sentencing court to the Commentary section of USSG § 2B1.1, which states that “[t]he value of the property stolen plays an important role in determining sentences ... because it is an indicator of both the harm to the victim and the gain to the defendant.” USSG § 2B1.1, comment, (backg’d.) (emphasis added). The guidelines harmonize consideration of both the victim’s loss and the defendant’s gain by stating that “[f]or the purposes of subsection (b)(1), the loss need not be determined with precision. The court need only make a reasonable estimate of the loss, given the available information.... The offender’s gain from committing the fraud is an alternative estimate that ordinarily will underestimate the loss.” USSG § 2F1.1, comment, (n. 8) (emphasis added).

3.

The presentenee report recommended that the $362,000 Parrish received from Zimmerman be used, as the amount reasonably estimating SDRC’s loss, to determine the specific offense level under § 2Fl.l(b)(l). The report also recommended that Parrish’s offense be increased nine levels, from 6 to 15, because of the magnitude of the loss (USSG § 2Fl.l(b)(l)(J,K)) and two more levels because the offense involved “more than minimal planning” (USSG § 2Fl.l(b)(2)), and that the offense level then be reduced three levels for acceptance of responsibility (USSG § 3E1.1). This computation resulted in an offense level of 14 and, coupled with a criminal history category I, yielded a guideline range of 15 to 21 months imprisonment, 2 to 3 years supervised release, and a fine of $4,000 to $40,000.

4.

Parrish objected to the presentence report’s determination that there was a loss of $362,000, arguing that “the mere fact that [Parrish] benefits does not mean that there’s a loss to the victim,” and that the government “had no proof to establish that there was a loss.... There’s not one bit of proof, and the stipulation shows that, that [Parrish] ever made a decision to the detriment of SDRC.”

In response, the probation officer reiterated the reasons for determining the amount of loss as described above. An Assistant United States Attorney told the sentencing court that

[fit’s unclear what the actual loss was to the company, because had the company known that she was receiving a commission, they may have been successful in getting a lower amount of cost. In this particular case, the facts can’t establish exactly what that would be, whether had the employer known of her commissions, whether that would have entered into a factor where they could negotiate a lower cost.

The government further argued that, “because the loss cannot be determined with precision, the Probation Officer has used the alternative of looking at the gain of the defendant, which is provided for in the guidelines.”

5.

The sentencing court ruled from the bench that income tax records showing that Parrish received $362,000 from Zimmerman were “proof of the amount of money that she received,” and therefore of the amount of loss under the guidelines. The sentencing court then adopted the recommendation in the presentence report and sentenced Parrish to 15 months of imprisonment, two years of supervised release, and a $10,000 fine.

II.

We “must uphold a sentencing court’s factual findings unless they are clearly erroneous,” United States v. Moored, 38 F.3d 1419, 1423 (6th Cir.1994), but “whether those facts as determined by the district court warrant the application of a particular guideline provision is purely a legal question and is reviewed de novo by this court,” United States v. Garner, 940 F.2d 172, 174 (6th Cir.1991). Parrish does not dispute the factual basis for her sentence, and therefore we engage in a de novo review of the sentence.

III.

A.

Parrish argues that the sentencing court erred by not making an independent determination that SDRC suffered a loss and by finding that Parrish’s gain was a legitimate approximation of SDRC’s loss. Parrish does not dispute that she received $362,000, but argues that SDRC did not suffer any actual or intended loss from the arrangement since what she received did not increase SDRC’s costs and she entered into the arrangement with the intent not to increase SDRC’s costs.

B.

The guidelines clearly provide that the sentencing court must look to the fraud victim’s loss. However they also provide that the loss may be estimated by the defendant’s gain, if the estimate is reasonable. USSG § 2F1.1, comment, (nn. 7,8). Nothing in § 2F1.1 “suggests that a fraud loss must be estimated and punished in the case where a fraudulent scheme could result in no loss,” United States v. Khan, 969 F.2d 218, 221 (6th Cir.1992) (no loss under USSG § 2F1.1 when attempt to defraud Social Security Administration failed because the Administration determined that petitioner was ineligible for benefits anyway), so we first examine whether SDRC suffered any loss as a result of Zimmerman’s “commission” payments to Parrish.

1.

A fiduciary who violates her duties for her own profit is “accountable ... for all the profits obtained ... although the ... [party owed the duty] may not have been injured thereby.” Jackson v. Smith, 254 U.S. 586, 588-89, 41 S.Ct. 200, 201, 65 L.Ed. 418 (1921). Parrish agreed that her failure to inform SDRC of her arrangement with Zimmerman was a breach of her fiduciary duty. If Parrish had fulfilled her fiduciary duty to SDRC by informing it of the “commission” payments, SDRC could have taken all or some of the money for itself. Thus, Parrish’s breach did cause SDRC a loss. Alternatively, had Parrish told SDRC about the arrangement, SDRC and Zimmerman could have reached an agreement whereby Zimmerman would have charged SDRC less. Even though Zimmerman stated that the “commission” did not affect its prices to SDRC, Parrish’s fraud cost SDRC the opportunity to reach such an arrangement. Thus, under either scenario, Parrish’s fraud resulted in a loss to SDRC.

2.

The remaining question is whether the specific amount used by the sentencing court as SDRC’s loss under USSG § 2Fl.l(b)(l) was proper. The parties agreed that an exact figure of SDRC’s loss was not quantifiable because of the nature of the arrangement. All that is required of a sentencing court, however, is a “reasonable estimate of the loss.” USSG § 2F1.1, comment. (n. 8). The loss should be an “indicator of both the harm to the victim and the gain to the defendant.” USSG § 2B1.1, comment. (baekg’d.). As discussed above, SDRC lost the opportunity to receive the 10% “commission” itself or to have its printing costs lowered by 10% or some fraction thereof. According to Parrish’s tax records, the total amount of the “commission” payments was $362,000. Thus, $362,000 represents both SDRC’s loss and Parrish’s gain, and this amount rightly formed the basis for determining the appropriate offense level under the guidelines.

IV.

For the reasons stated above, the sentencing court correctly applied the sentencing guidelines, and Parrish’s sentence is AFFIRMED.