source: Caselaw Access Project

author: COOK, Circuit Judge.

license: Public Domain

text:
    D.O.; A.O.; R.O., Plaintiffs-Appellants, v. Vickie Yates Brown GLISSON, in her official capacity as Secretary for the Cabinet for Health and Family Services, Defendant-Appellee.
    No. 16-5461
    United States Court of Appeals, Sixth Circuit.
    Argued: November 29, 2016
    Decided and Filed: January 27, 2017

      ARGUED: Richard F. Dawahare, MCCLELLAND & ASSOCIATES, PLLC, Lexington, Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellee: ON BRIEF: Richard F. Dawahare, MCCLEL-LAND & ASSOCIATES, PLLC, Lexington, Kentucky, for Appellants. David Brent Irvin, CABINET FOR HEALTH AND FAMILY SERVICES, Frankfort, Kentucky, for Appellee.
    Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.
   OPINION

COOK, Circuit Judge.

The federal Child Welfare Act (“the Act”) specifies that “[e]aeh State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative ... into foster care.” 42 U.S.C. § 672(a). This appeal asks whether the Act creates a private right to foster-care maintenance payments enforceable by a foster parent under 42 U.S.C. § 1983. We find that it does, and therefore reverse the district court’s contrary decision.

I.

In 2012, Kentucky’s Health and Family Services commenced a Dependency, Neglect, and Abuse proceeding against the mother of two young boys. The mother stipulated to neglecting her children, and Kentucky placed both boys in foster care. Plaintiff R.O., the mother’s aunt, sought custody of the children. The state “conducted a standard home evaluation and criminal background check on R.O. and eventually both children were placed in her home by Court Order.” In September 2014, the family court closed the action and granted joint custody to both the mother and the aunt, though the boys remained living with the aunt.

R.O. filed a motion with the family court seeking foster care maintenance payments. The court declined to rule on the issue, however, “indicating that permanency had been achieved.” R.O. then sued the Secretary for Kentucky’s Cabinet for Health and Family Services (“the Cabinet” or “Kentucky”) in state court, arguing that the federal Child Welfare Act required the state to provide maintenance payments, and that the failure to make payments violated the Constitution’s Equal Protection and Due Process Clauses. The Cabinet removed the case to federal court and filed a motion to dismiss, or in the alterna-five, a motion for summary judgment. The district court granted the Cabinet’s motion, reasoning that the Child Welfare Act provides no privately enforceable rights, that the family lacked a property interest in the payments, and that Kentucky’s scheme rationally distinguished between relative and non-relative foster care providers. The family appealed.

II.

The court “review[s] a grant of summary judgment de novo, construing the evidence and drawing all reasonable inferences in favor of the nonmoving party.” Hirsch v. CSX Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011) (citing Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009)). “Summary judgment is appropriate where the movant demonstrates that there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Rocheleau v. Elder Living Constr., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).

III.

In 1980, Congress passed the Child Welfare Act, also known as Title IV-E of the Social Security Act. This federal-state grant program facilitates state-run foster care and adoption assistance for children removed from low-income homes. See 42 U.S.C. § 670. Congress passed the Act under its Spending Clause power, U.S. Const, art. I, § 8, and like other federal-state cooperative programs, states are given the choice of complying with the Act’s conditions or forgoing federal funding.

Three sections of the Act are relevant here. First, to be eligible for federal funds, a state must submit a plan to the Secretary of Health and Human Sendees that satisfies thirty-five specific criteria. 42 U.S.C. § 671(a). If a state’s plan fails to “substantially] conform[ ]” to the Act’s requirements, id. § 1320a-2a, the Secretary, after giving the state an opportunity to implement a corrective action plan, must withhold federal money, id. § 1320a-2a(b)(3)(A), (4)(A).

Second, the plan must “provide[] for foster- care maintenance payments in accordance with section 672.” Id. § 671(a)(1). Under § 672, “[e]ach State with a plan approved under this part shall make foster care maintenance payments on behalf of each child who has been removed from the home of a relative ... into foster care.” Id. § 672(a)(1). Foster care maintenance payments cover the cost of, among other things, the child’s food, clothing, and shelter. Id. § 675(4)(A).

Third, after the state remits maintenance payments to the foster family, it may seek partial reimbursement from the federal government. Section 674(a)(1) provides that “each State which has a plan approved under this part shall be entitled to a payment equal to the sum of’ an “amount equal to the Federal medical assistance percentage ... of the total amount expended during such quarter as foster care maintenance payments under section 672 of this title for children in foster family homes or child-care institutions.”

IV.

We first address the central issues on appeal: 1) whether the Act confers upon foster families a private right to foster care maintenance payments; and 2) whether that right is enforceable under § 1983.

1. Private Right

Title 42 U.S.C. § 1983 imposes liability on anyone who, acting under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” This section authorizes suits to enforce individual rights under federal statutes as well as the Constitution. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Nonetheless, “§ 1983 does not provide an avenue for relief every time a state actor violates a federal law.” City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 119, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). Rather, “to sustain a § 1983 action, the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs.” Id. at 120, 125 S.Ct. 1453 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)).

For this court to find an individually enforceable right: 1) “Congress must have intended that the provision in question benefit the plaintiff’; 2) the asserted right must not be “so vague and amorphous that its enforcement would strain judicial competence”; and 3) “the statute must unambiguously impose a binding obligation on the States.” Blessing v. Freestone, 520 U.S. 329, 340-41,117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (internal citations and quotation marks omitted).

To illustrate, in Harris v. Olszewski, 442 F.3d 456 (6th Cir. 2006), we evaluated whether Medicaid’s freedom-of-choice provision established enforceable rights. The provision reads: “A State plan for medical assistance must ... provide that [ ] any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required.” 42 U.S.C. § 1396a(a)(23). We held that the provision granted Medicaid-recipients an individually enforceable right to choose their medical provider, reasoning that the phrase “any individual eligible for medical assistance” evinced “the kind of individually focused terminology that unambiguously confers an individual entitlement under the law.” Harris, 442 F.3d at 461 (internal citation and quotation marks omitted). We noted that “the mandate [ ] does not contain the kind of vagueness that would push the limits of judicial enforcement.” Id. at 462. And we explained that “the ‘must ... provide’ language of the provision confirms that the statute is ‘couched in mandatory, rather than precatory, terms.’ ” Id. (omission in original) (quoting Blessing, 520 U.S. at 341, 117 S.Ct. 1353); see also Barry v. Lyon, 834 F.3d 706, 717 (6th Cir. 2016) (holding that the federal Supplemental Nutrition Assistance Program — mandating that “[assistance under this program shall be furnished to all eligible households,” 7 U.S.C. § 2014(a)—created a privately enforceable statutory right).

By contrast, in Gonzaga University the Supreme Court held that the Family Educational Rights and Privacy Act (“FERPA”) failed to grant students a privacy right in their education records. 536 U.S. at 290, 122 S.Ct. 2268. The relevant statutory section provided:

No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization.

Id. at 279, 122 S.Ct. 2268 (omission in original) (quoting 20 U.S.C. § 1232g(b)(1)). The Court reasoned in part that FERPA lacked “the sort of ‘rights-ereating’ language critical to showing the requisite congressional intent to create new rights.” Id. at 287, 122 S.Ct. 2268 (citing Alexander v. Sandoval, 532 U.S. 275, 288-89, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and Cannon v. Univ. of Chi, 441 U.S. 677, 690 n.13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). In particular, “FERPA’s provisions speak only to the Secretary of Education, directing that ‘no funds shall be made available’ to any ‘educational agency or institution’ which has a prohibited ‘policy or practice.’ ” Id. (quoting 20 U.S.C. § 1232g(b)(1)). The nondisclosure provisions evinced an “aggregate focus” that “speak only in terms of institutional policy and practice, not individual instances of disclosure,” and “are not concerned with ‘whether the needs of any particular person have been satisfied.’” Id. at 288, 122 S.Ct. 2268 (quoting Blessing, 520 U.S. at 343-44, 117 S.Ct. 1353).

Applied here, we conclude the Act confers upon foster parents an individually enforceable right to foster care maintenance payments. First, the Act mandates payments “on behalf of each child.” 42 U.S.C. § 672(a)(1). This focus on individual recipients is similar to language creating private rights in Harris and Barry. Unlike Gonzaga, the Act requires individual payments and focuses on the needs of specific children, as opposed to merely speaking to the state’s policy or practice. Second, the Act confers a monetary entitlement upon qualified foster families and includes an itemized list of expenses that the state must cover. 42 U.S.C. § 675(4)(A). It therefore lacks vague and amorphous terms that might strain judicial competence. Finally, § 672(a)(1)’s “shall make” language “unambiguously impose[s] a binding obligation on the States.” Blessing, 520 U.S. at 341, 117 S.Ct. 1353.

Kentucky makes several arguments to the contrary, though none are persuasive. It first argues that § 672(a) simply sets out the preconditions that a state must satisfy to receive federal reimbursement. In support, it points to a different statutory section, § 674(a)(1), which provides that “each State which has a plan approved under this part shall be entitled to a payment equal to the sum of’ an “amount equal to the Federal medical assistance percentage ... of the total amount expended during such quarter as foster care maintenance payments under section 672 of this title for children in foster family homes or child-care institutions.” 42 U.S.C. § 674(a)(1). Based on this section, Kentucky invokes the Eighth Circuit’s reasoning that the “function of § 672(a) is to serve as a roadmap for the conditions a state must fulfill in order for its expenditure to be eligible for federal matching funds; otherwise, the state bears the full cost of these payments.” Midwest Foster Care & Adoption Ass’n v. Kincade, 712 F.3d 1190, 1198 (8th Cir. 2013) (citing § 674(a)(1)).

We disagree. If § 672(a) simply provides a roadmap that states may choose to follow to receive matching funds, then Congress would not have phrased the section in mandatory terms. Indeed, once the Secretary approves the state’s plan, the state “shall make foster care maintenance payments.” 42 U.S.C. § 672(a)(1) (emphasis added). It isn’t optional. And although a separate section of the Act requires the federal government to partially reimburse these costs, nothing in § 672(a) mentions funding.

Kentucky next contends that the Act “ ‘do[es] not speak directly to the interests’ of foster parents; rather, [it] ‘speak[s] to the states as regulated participants in the [Act].’ ” Appellee Br. 36 (quoting Midwest Foster Care, 712 F.3d at 1197). Kentucky suggests that when Congress writes in the active voice, making the state the subject, its focus is on the state as the regulated entity, and courts should not infer a private right to whatever benefit the state is supposed to provide. Thus, because Congress wrote in the active voice — “[e]aeh State with a plan approved under this part shall make foster care maintenance payments on behalf of each child,” 42 U.S.C. § 672(a)—Kentucky argues the law does not create a private right. Cf. New York State Citizens’ Coal, for Children v. Carrion, 31 F.Supp.3d 512, 521 (E.D.N.Y. 2014) (“If the statute were worded differently, and § 672(a)(1) read: ‘No eligible child shall be denied foster care maintenance payments by a State with an approved plan,’ a reasonable reader might find the requisite ‘rights-creating’ language.”).

Both the Supreme Court and the Sixth Circuit, however, have found that laws phrased in the active voice, with the state as the subject, confer individually enforceable rights. See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 502-03, 509-10, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), superseded on other grounds by statute; Harris, 442 F.3d at 461-62. This should not be surprising: Congress must not only use rights-creating language, but also “unambiguously impose a binding obligation on the States.” Blessing, 520 U.S. at 341, 117 S.Ct. 1353. When Congress names the state as the subject, writes in the active voice, and uses mandatory language, it leaves no doubt about the actor’s identity or what the law requires.

Last, Kentucky argues that because the Act “does not dictate the amounts that States must pay to foster parents,” it is not “sufficiently specific and definite to qualify as enforceable under § 1983.” But the Supreme Court in Wilder recognized a private right to a monetary benefit even though the law granted states discretion to set the applicable rate. “That the [statute] gives the States substantial discretion in choosing among reasonable methods of calculating rates may affect the standard under which a court reviews whether the rates comply with the [statute], but it does not render the [statute] unenforceable by a court.” Wilder, 496 U.S. at 519, 110 S.Ct. 2510. And as the Ninth Circuit explained when evaluating this provision, “[i]f a statute or applicable federal requirement does not prescribe a particular methodology for calculating costs, we give deference to a reasonable methodology employed by the State.” Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 981 (9th Cir. 2010). Here, it is undisputed that Kentucky established foster care maintenance payment rates. And neither party contends that Kentucky’s rate-setting methodology is unreasonable.

Accordingly, § 672(a) confers an individually enforceable right to foster care maintenance payments.

2. Enforcement Under § 1983

Once a plaintiff demonstrates that a statute creates a private right, “there is only a rebuttable presumption that the right is enforceable under § 1983.” Abrams, 544 U.S. at 120, 125 S.Ct. 1453 (quoting Blessing, 520 U.S. at 341, 117 S.Ct. 1353). The state may rebut the “presumption by demonstrating that Congress did not intend that remedy for a newly created right.” Id. (citing Blessing, 520 U.S. at 341, 117 S.Ct. 1353, and Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)). “[E]vidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Id. (internal quotations and citations omitted).

In Wilder, the Medicaid Act “authorize[d] the Secretary to withhold approval of plans,” to “curtail federal funds to States whose plans are not in compliance,” as well as required States to set up an administrative review system. 496 U.S. at 521-22, 110 S.Ct. 2510. Notwithstanding these procedures, the Court found that “the Secretary’s limited oversight” and “[t]he availability of state administrative procedures ... do[ ] not foreclose resort to § 1983.” Id. at 522-23, 110 S.Ct. 2510. Similarly, in Harris, we held that a plaintiff could sue under § 1983 because the Medicaid Act “does not provide other methods for private enforcement of the Act in federal court.” 442 F.3d at 462 (citations omitted). Further, we noted that the Secretary’s authority to “withhold funds to non-complying States” and “the Act’s requirement that States grant an opportunity for a fair hearing ... [are not] inconsistent with a private action.” Id. at 463 (internal quotation marks and citations omitted); see also Blessing, 520 U.S. at 348, 117 S.Ct. 1353 (finding that Congress left open access to § 1983 because the statute “contains no private remedy ... through which aggrieved persons can seek redress,” and the Secretary could “audit only for ‘substantial compliance’ on a programmatic basis”); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 427-28, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987) (same).

Here, the Act’s weak enforcement mechanisms fall short of foreclosing access to § 1983 remedies. Like in Wilder, Blessing, and Harris, the Secretary reviews the state’s plan only on a program-wide basis, and lacks authority to ensure the state provides benefits to individual foster parents. Indeed, a state could implement a plan that substantially conforms to the Act’s requirements, yet neglect to pay foster parents in individual cases. Absent resort to § 1983, foster families possess no federal mechanism to ensure compliance with the Act. And although the Act requires states to provide for administrative review of denied claims, 42 U.S.C. § 671(a)(12), the “availability of state administrative procedures ordinarily does not foreclose resort to § 1983.” Wilder, 496 U.S. at 523, 110 S.Ct. 2510; see also Harris, 442 F.3d at 463.

Kentucky’s arguments to the contrary rely on the Supreme Court’s Gonzaga decision. There, however, FERPA “expressly authorized the Secretary of Education to ‘deal with violations’ of [FERPA],” and established a review board to adjudicate individual written complaints. Gonzaga, 536 U.S. at 289, 122 S.Ct. 2268 (quoting 20 U.S.C. § 1232g(f)). The Court found that “[t]hese administrative procedures squarely distinguish this case from Wright and Wilder, where an aggrieved individual lacked any federal review mechanism.” Id. at 289-90, 122 S.Ct. 2268. Notably, the Court inserted a footnote opining that it “need not determine whether FERPA’s procedures are ‘sufficiently comprehensive’ to offer an independent basis for precluding private enforcement, due to our finding that FERPA creates no private right to enforce.” Id. at 290 n.8, 122 S.Ct. 2268 (citation omitted). In any event, the Child Welfare Act, unlike FERPA, includes no private federal review mechanism that an aggrieved foster family can employ.

In sum, we hold that the Act confers foster families with an individual right to foster care maintenance payments enforceable under § 1983.

V.

Having determined that the Act creates an individually enforceable statutory right, we next evaluate whether the Plaintiffs are entitled to maintenance payments. Section 672(a) restricts the class of children entitled to benefits in two relevant ways. First, the child must be in the Cabinet’s custody; once the child is adopted or placed in a permanent guardianship, the Act no longer requires maintenance payments. 42 U.S.C. § 672(a)(2)(B). Second, the child must be placed in a licensed or approved “foster family home.” Id. § 672(a)(2)(C). The district court did not address whether the children satisfy these qualifications' because it found the Act failed to create a private right. Plaintiffs contend that both conditions are met, and ask the court to order the Cabinet to make payments. We address each criterion in turn.

1. State Custody

Section 672(a)(2)(B) requires the Cabinet to make maintenance payments only when “the child’s placement and care are the responsibility of ... the State agency administering the State plan.” 42 U.S.C. § 672(a)(2)(B). Both parties agree that the Cabinet need only make payments on behalf of children that are in its custody. Furthermore, there is no doubt that the Cabinet obtained responsibility for the children when the family court removed them from their mother’s home.

The issue is whether the family court discharged the children from the Cabinet’s care when it ordered the boys to live with the aunt and closed the case. The answer turns on Kentucky law. In Kentucky, “[i]f a child has been removed from the home and placed in the custody of ... the cabinet, a judge of the District Court shall conduct a permanency hearing” on an annual basis. Ky. Rev. Stat. Ann. § 610.125(1) (West 2016). At the permanency hearing, the judge must decide, among other things, whether the child should be placed for adoption, placed with a permanent custodian, returned to the parent, or kept in foster care. Id. The Family Court Rules of Procedure and Practice provide that “[a]ny order of permanent custody” must be on form AOC-DNA-9. Fam. Ct. R. P. Prac. 22(4). Pursuant to that form, the court must affirmatively place the child in permanent custody and discharge the Cabinet of further responsibility.

The parties proceeded below on stipulated facts because the family court records are sealed. The only facts regarding the children’s placement with the aunt are as follows:

• “R.O. was granted temporary custody by the Fayette Family Court of D.O. on March 27, 2013.”
• “R.O. also accepted placement of A.O. on February 21, 2014 via Order of Fayette Family Court where the DNA case of A.O. had also been transferred.”
• “On September 10, 2014, the Fayette Family Court closed the DNA action of both boys by granting joint custody to R.O. and C.O. The children were Ordered to reside with R.O.”
• “Although the [guardian ad litem] made a Motion [to Order the Cabinet to pay maintenance fees] on May 14, 2014, the Court declined to issue further Orders on May the 21st, indicating that permanency had been achieved.”

Though the Cabinet avers that R.O. is the children’s permanent guardian, it has not identified evidence that the family court held a permanency hearing or discharged the children from the Cabinet’s care. For its part, the family contends that the Order granting R.O. custody “was issued in a DNA review hearing, not in a permanent custody hearing as required” by state law, and that the “order was simply written on the docket sheet. It was not entered on the AOC-DNA-9 Order-Permanent Custody form as required by Rule 22.”

In a supplemental memo and at oral argument, the Cabinet contended that the children must be in R.O.’s permanent custody because the family court closed the case. According to the Cabinet, if we find the children remain in state custody, it will create an “indeterminate legal purgatory” for children not in permanent custody, but also without an open family court case. But under Kentucky law, there is nothing indeterminate about the children’s status: foster children remain in the Cabinet’s custody until formally discharged by court order. The Cabinet also suggested that requiring strict adherence to state law elevates form over substance. We are unpersuaded. Requiring the Cabinet to abide by proper procedures promotes important interests — namely, certainty about the custody status of foster children.

Thus, on remand the district court should determine whether the family court affirmatively discharged the children from the Cabinet’s custody. If the court finds no affirmative discharge, then the children remain the Cabinet’s responsibility.

2. Foster Family Home

The Cabinet must provide maintenance payments only if “the child has been placed in a foster family home or childcare institution.” 42 U.S.C. § 672(a)(2)(C). The Act defines “foster family home” to mean a “home for children which is licensed by the State in which it is situated or has been approved, by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing.” Id. § 672(c) (emphasis added).

The Act contemplates two categories of ' foster families. The first category includes licensed foster parents, who usually care for unrelated foster children. To become licensed, prospective foster parents must satisfy certain safety standards, which include passing a background check and submitting to a home evaluation. Id. § 671(a)(20). The state also establishes non-safety standards, id. § 671(a)(10), which in Kentucky include mandatory periodic training.

The second category consists of approved foster homes, which typically care for a relative child. Reflecting Congress’s preference that children live with family members, id. § 671(a)(19), the Act allows states to place children with unlicensed relatives. To obtain approval, the home must “meet[] the standards established for such licensing.” Id. § 672(c). Each state may waive non-safety standards on a case-by-case basis for children in relative foster family homes. Id. § 671(a)(10)(D). Furthermore, the Act requires states to give preference to adult relative caregivers only when the relative caregiver meets the relevant safety standards. Id. § 671(a)(19).

Here, the parties stipulated to the following:

• “[The mother] stipulated to dependency of A.O. on December 13, 2012 in the private petition in Clark County and to neglect of D.O. in April of 2013 in the Fayette County Family Court DNA proceeding. Accordingly, A.O. was initially placed with the person who made the petition, a non-relative placement, and D.O. was initially placed in foster care.”
• “R.O. is the maternal great aunt of the children. She is a para-educator (teacher’s assistant) for Fayette County public schools. CHFS conducted a’ standard home evaluation and criminal background check on R.O. and eventually both children were placed in her home by Court Order.”

The family argues that the Cabinet approved R.O. to be a foster parent. Prior to placement, the Cabinet verified that R.O. met relevant non-safety standards by conducting a home evaluation and a background check. After determining that her home was safe, the family court moved the children from another foster provider to her care. R.O. therefore argues that the Cabinet “approved” her as a foster parent for the children.

Kentucky offers several arguments in response. Kentucky distinguishes between “foster care” and “kinship care.” According to Kentucky, “foster care” refers to licensed foster family homes. “Kinship care,” by contrast, refers to relative caregivers. Although the Cabinet must remit maintenance payments to foster parents, the • Cabinet need only pay kinship care providers “[t]o the extent funds are available.” Ky. Rev. Stat. Ann. § 605.120(5) (West 2016). Due to inadequate appropriations, Kentucky ceased funding its kinship care program.

To the extent the Cabinet’s failure to make maintenance payments turns on the distinction between relative and non-relative foster care providers, it. plainly violates federal law. In Miller v. Youakim, 440 U.S. 125, 99 S.Ct. 957, 59 L.Ed.2d 194 (1979), Illinois placed two children with their older sister, Linda Youakim, and her husband. Id. at 130, 99 S.Ct. 957. “The Department investigated the Youakim home and approved it as meeting the licensing standards established for unrelated foster family homes....” Id. Yet, “[despite this approval, the State refused to make Foster Care payments on behalf of the children because they were related to Linda Youakim.” Id. The Court reviewed the definition of “foster family home.” Id. at 130-31, 99 S.Ct. 957. After noting that the statute “defines this phrase in sweeping language,” the Court found that “Congress manifestly did not limit the term to encompass only the homes of nonrelated caretakers. Rather, any home that a State approves as meeting its licensing standards falls within the ambit of this definitional provision.” Id. at 135, 99 S.Ct. 957.

Though Congress changed aspects of the Act over the ensuing years, it has not added any provision distinguishing relative and non-relative foster care providers. Nor has it modified the definition of “foster family home” that the Court interpreted in Youakim. Compare id. (defining “foster family home” under prior version of the Act), with 42 U.S.C. § 672(c). Thus, if Kentucky is denying benefits because the aunt is related to the children, it is violating federal law.

Second, Kentucky notes that the Act makes kinship guardianship assistance optional:

[A]t the option of the State, [the plan] provides for the State to enter into kinship guardianship assistance agreements to provide kinship guardianship assistance payments on behalf of children to grandparents and other relatives who have assumed legal guardianship of the children for whom they have cared as foster parents and for whom they have committed to care on a permanent basis, as provided in section 673(d) of this title.

42 U.S.C. § 671(a)(28). Under § 673(d), states may provide kinship guardianship assistance on behalf of children who previously resided “for at least 6 consecutive months in the home of the prospective relative guardian” and for whom the prospective guardian committed to caring on a permanent basis. Id. § 673(d)(3)(A). But kinship guardianship assistance applies only when the relative becomes the child’s permanent guardian, not while the child is in temporary status. As noted above, it is unclear whether R.O. is the children’s permanent guardian, or whether the placement is temporary. If R.O. has temporary custody of the children, then the Cabinet’s argument about kinship guardianship assistance is irrelevant.

Accordingly, because the Cabinet “conducted a standard home evaluation and criminal background check on R.O.” prior to delivering the children to her care, she is an approved foster care provider.

VI.

For. the foregoing reasons, the district court’s decision is reversed. Upon remand, the district court shall determine whether the Cabinet maintains responsibility for the children’s “placement and care.” If the Kentucky court discharged the children from the Cabinet’s custody, then the district court should dismiss the case. If not, then the district court shall award foster care maintenance payments.

      . The relevant provision of the Medicaid Act mandates that "a State plan for medical assistance must provide for payment of the hospital services ... through the use of rates ... which the State finds ... are reasonable and adequate.” Wilder, 496 U.S. at 502-03, 110 S.Ct. 2510 (internal alterations and citation omitted).

      . Because we resolve this appeal on statutory grounds, we need not address the family’s constitutional arguments.


author: RONALD LEE GILMAN, Circuit Judge.

text:
    Kirsten WILLIAMS, Plaintiff-Appellant, v. AT&T MOBILITY SERVICES LLC, Defendant-Appellee.
    No. 16-6078
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: January 27, 2017

      ON BRIEF: Steve Wilson, THE STEVE WILSON FIRM, Memphis, Tennessee, Matt Gulotta, THE GULOTTA FIRM, Memphis, Tennessee, for Appellant. Charles W. Hill, Meghan K. McMahon, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellee.
    Before: GILMAN, GRIFFIN, and ' STRANCH, Circuit Judges.
   OPINION

RONALD LEE GILMAN, Circuit Judge.

Kirsten Williams was employed by AT&T Mobility Services LLC (AT&T) as a Customer Service Representative (CSR). Williams suffered from depression and anxiety attacks, which caused her to be frequently absent from work. AT&T terminated Williams in July 2014 for job abandonment and for violating the company’s attendance policy. Williams then filed a lawsuit under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., in the United States District Court for the Western District of Tennessee. She asserted claims against AT&T for failure to provide her with a reasonable accommodation, failure to engage in the interactive process, disparate treatment, and retaliation.

AT&T moved for summary judgment, which the district court granted as to all of Williams’s claims. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Job duties and attendance requirements for Williams’s CSR position

Williams was employed as a CSR with AT&T from 2006 until she was terminated in July 2014. She worked at AT&T’s Memphis Call Center, where her job duties included answering incoming calls and assisting customers with technical-support and billing issues. To answer calls, Williams had to be physically present at her workstation and logged in to her computer.

CSRs work eight-hour shifts, which rotate every six months. During these shifts, CSRs are expected to remain at their workstations receiving calls, with the exception of breaks for lunch, two pre-scheduled 15-minute breaks per day, and unscheduled restroom breaks as needed. Although there is no requirement that a CSR field a certain number of calls per day, CSRs typically handle about 40 to 50 calls during each shift.

If a CSR is not logged in to her workstation, any calls that would have otherwise gone to her are rerouted to another CSR. Both Darcus Payne, the Area Manager of the Memphis Call Center, and Laura Mc-Arthur, an AT&T Attendance Manager, submitted declarations explaining the consequences of a CSR’s unscheduled absences. Such consequences include potential increases in customer wait times and decreases in the quality and speed of customer service. Unscheduled absences can also cause increased workplace tensions and decreased morale among the CSRs.

For these reasons, AT&T requires regular attendance by its CSRs. AT&T has Attendance Guidelines, under which CSRs accrue “attendance points” for unscheduled late arrivals to and absences from work. A CSR who accumulates eight or more attendance points is subject to being terminated. But leave under AT&T’s short-term disability (STD) policy, the Family and Medical Leave Act (FMLA), or an approved job accommodation under the ADA does not result in- the accrual of attendance points.

AT&T handles all FMLA leave requests internally. STD leave and job-accommodation requests, however, are processed by a third-party claims administrator, Sedgwick Claims Management Services. Sedgwick manages AT&T’s Integrated Disability Service Center (IDSC). CSRs therefore interact with the IDSC when seeking STD leave or job accommodations. If an accommodation appears to be medically necessary, the IDSC relays the request to the employee’s supervisors, who then confirm whether the request can be honored.

B. Williams’s attendance problems and requests for leave

Williams struggled with attendance throughout her employment with AT&T. From 2007 to 2014, she received written warnings every year about her accumulation of attendance points under the Attendance Guidelines. Williams was absent from work for most of 2013 due to her depression and anxiety attacks. Most notably, she did not work from January until July of that year, using a combination of STD leave and FMLA leave to cover this time period. She worked a few days in August 2013 before returning to STD leave in September, and she remained on such leave through all of October and for large parts of November and December.

Williams’s absenteeism continued into 2014. She returned to work on January 20, 2014, after having been absent since December 3, 2013. Her supervisors discussed her poor attendance record with her in both January and February 2014, warning her that she had accumulated nearly enough points for termination. During these conversations, Williams acknowledged that she understood the attendance policy. Later in February 2014, Williams received a negative written evaluation of her 2013 performance, which stated that her attendance and punctuality “does not meet” expectations and that she needed to “mak[e] real efforts to improve her performance and attendance.”

Williams failed to heed these warnings and continued to miss work. She worked only sporadically after March 11, 2014. After April 9, 2014, she ceased to work entirely and did not return at any point before her termination on July 3, 2014.

Williams requested a combination of FMLA leave, STD leave, and job accommodations in the form of leave to cover her absences after February 4, 2014. She was denied FMLA leave for all absences beginning in December 2013 because she failed to meet the threshold eligibility requirement of having worked 1,250 hours in the preceding year due to her numerous prior absences. Williams obtained STD leave for her absences from April 10 to April 27 (these and all dates hereinafter refer to 2014 unless otherwise noted).

For all dates after April 27, the IDSC initially denied STD leave on the ground that Williams had provided insufficient medical documentation. AT&T then sent Williams a return-to-work letter, informing her that she would be terminated if she did not either appear at work by May 12 or obtain approval for more leave. In response, Williams told AT&T Employee Relations Manager Priscilla Adams that she could not return during May, and that she would send additional medical information to the IDSC. After such information was submitted, the IDSC approved STD leave for absences from April 17 to May 27, but denied STD leave for absences from May 28 onward, again finding that Williams had provided insufficient medical documentation. AT&T sent Williams another return-to-work letter, this time setting a June 10 deadline.

Williams again failed to return to work. In response, her supervisors began the process of seeking approval to terminate her on the grounds that she had accrued more attendance points than the number allowed by AT&T’s policy, that she had abandoned her job, and that she had failed to return to work as directed. Her supervisors were careful to wait to take any action until Williams had submitted all of her medical information and the IDSC had evaluated the claim. Shortly thereafter, Williams’s treatment providers submitted additional medical information to the IDSC in support of her STD claim for absences after May 27. The claim was denied on the basis of insufficient medical information, but Williams’s supervisors decided to “make one more attempt” to contact Williams and determine whether she intended to return to work. AT&T therefore sent Williams still another return-to-work letter, requiring her to be present by June 30. Williams responded that she could not return to work on that date.

Following Williams’s third failure to return to work, her supervisors began reconsidering termination. Williams was then in the process of appealing the IDSC’s denial of STD leave for all absences after May 27. But Area Manager Payne confirmed that even if the appeal were successful, Williams would still have 16 attendance points — double the amount constituting a terminable offense. After making this calculation, AT&T terminated Williams on July 3.

C. Williams’s requests for flexible scheduling and additional breaks as accommodations under the ADA

Williams argues that she could have performed her job if she had been given two accommodations: a flexible start time and additional breaks throughout the day. She first requested these accommodations in February 2014 during a conversation with one of her supervisors, Monica Scruggs. Scruggs began with a discussion about attendance issues. In response, Williams informed Scruggs that she was suffering from depression and anxiety attacks, and mentioned that she needed “flexible scheduling and additional breaks” as possible accommodations.

Williams’s next accommodation request went through the IDSC. In March 2014, the IDSC informed another of Williams’s supervisors, Chinna Prude-Anderson, that Williams had requested “restrictions/accommodations” in the form of STD coverage for several absences in February and March, as well as “intermittent time off moving forward.” Williams now asserts that she intended her request for “intermittent time off’ to mean that she could start her shift 30 to 60 minutes later each day. There is no indication in the record, however, that Williams explained this to anyone at the IDSC or at AT&T. Williams told Prude-Anderson that she needed an accommodation, but did not specify the reason for it, and also stated that the reason for her delay in submitting medical information to the IDSC was that she was waiting on her medical provider. The IDSC eventually closed the March accommodation request because Williams failed to timely submit medical information.

After Williams had her first appointment with nurse-practitioner Laura Thompson in April 2014, Thompson submitted a report of the visit to the IDSC later that month. Thompson diagnosed Williams with depression and anxiety. The medical report estimated that Williams needed 25 hours off of work per month from February 15, 2014 until August 15, 2014. Thompson also wrote that she was “unable to determine [the] time frame [for Williams’s recovery] at this time.” The report recommended that Williams needed a “10 minute break every 2 hours,” a “flexible start time,” and “modified break time during anxiety attacks.” It also recommended that Williams not work at all from April 11 to April 27. In a written statement accompanying Thompson’s report, Williams requested “time for treatment of mental illness” and “flexible scheduling, leave for counseling, and modified break schedule.” But nowhere in the report did Thompson or Williams explain how the proposed flexible-scheduling accommodation would actually work.

Williams repeatedly informed the IDSC that she was continuing to receive medical treatment and that she would submit additional paperwork. Her medical documentation indicated that, beginning in May, she was in therapy from at least 10:00 a.m. until 3:00 p.m. daily, which was expected to last until June 13. As of May 8, psychiatrist Dr. Madakasira opined that Williams was “not fit for work at this time,” but that she could return at the end of the treatment program if released to do so at that time. But Dr. Madakasira did not identify any accommodations that would have allowed Williams to perform her job.

On June 11, another healthcare provider, therapist Debra Butler from Health-Quest, sent documentation to the IDSC, concluding that Williams was “unable to work at this time due to cognitive impairment and mood disturbance.” Butler did not mention any accommodation requests, but estimated that Williams could return to work full-time on June 30.

On June 13, however, Williams called Attendance Analyst Lisa Todd-Kyle, stating that she would not be able to return to work until her outpatient treatment program concluded eight weeks later. Williams called Todd-Kyle again on June 24 to reiterate that she could not return to work by June 30 due to the ongoing treatment program. Medical documentation sent from HealthQuest on June 20 confirmed that Williams’s treatment was projected to last until August 6.

D. Procedural background

After filing a charging document with the EEOC and receiving a right-to-sue letter, Williams filed a complaint against AT&T in the district court. The complaint alleged that AT&T had violated the ADA by failing to provide Williams with a reasonable accommodation, failing to engage in the interactive process of determining such an accommodation, and terminating Williams based on unlawful disability discrimination and retaliation for requesting an accommodation.

AT&T filed a motion for summary judgment. In response, Williams moved for partial summary judgment on the issue of whether she was disabled under the ADA. The district court granted partial summary judgment in favor of Williams, concluding as a matter of law that she was disabled. But in a later ruling the court granted summary judgment in favor of AT&T on all of Williams’s claims. This timely appeal followed.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s grant of summary judgment. Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 301 (6th Cir. 2016). Summary judgment is proper when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must view all evidence in the light most favorable to the nonmoving party in making this determination. Tennial, 840 F.3d at 301.

B. Failure-to-accommodate claim

Williams argues that AT&T violated the ADA by failing to provide her with a reasonable accommodation that would allow her to continue working despite her depression and anxiety attacks. She sought accommodation in the form of leave from work for treatment, flexible scheduling, and additional breaks during her shifts.

The district court ruled that Williams was not qualified for her job as a CSR because she could not perform the essential function of attending work regularly and punctually. In addition, the court concluded that Williams’s proposed accommodation was per se unreasonable because it sought to eliminate the essential job function of regular attendance and punctuality.

1. Without an accommodation, Williams was unqualiñed for her position because of her excessive absenteeism.

Failure to provide a reasonable accommodation to a disabled, but otherwise qualified, person in the workplace is deemed unlawful discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A); Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007). As a threshold matter in every disability-discrimination claim, a plaintiff must demonstrate that (1) she is disabled; and (2) she is “otherwise qualified for the position despite” her disability, either with or without a reasonable accommodation. Id. at 869 (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004)). An employee is deemed qualified only if she can perform all of the essential functions of her job, whether accommodated or not. 42 U.S.C. § 12111(8).

In the present case, Williams argues that she would have been qualified for the CSR position if a reasonable accommodation had been granted. AT&T responds that Williams’s poor attendance record shows that she was not qualified because she could not perform the essential function of regularly attending her job. Similarly, AT&T argues that the flexible scheduling and modified breaks that Williams proposed would not have enabled her to perform the essential function of regular attendance.

We must first determine whether regular attendance is an essential function of Williams’s position. In making this determination, the ADA instructs us to consider evidence of the employer’s judgment, which can include any written job descriptions prepared prior to advertising and interviewing applicants for the job at issue. 42 U.S.C. § 12111(8). Regular attendance is especially likely to qualify as an essential job function after this court’s recent en banc holding that “[rjegular, in-person attendance is an essential function ... of most jobs, especially the interactive ones.” EEOC v. Ford Motor Co., 782 F.3d 753, 762-63 (6th Cir. 2015) (en banc) (concluding that an employee who had excessive absences was not qualified for her job, and that her request to work from home as an accommodation was not reasonable).

The Ford decision was based in part on an analysis of the factors outlined in 29 C.F.R. § 1630.2(n)(iii) for determining whether a particular job function is essential. Id. at 763. “Commonsense notions” that physical presence at work is important to most jobs, the court concluded, also supported this outcome. Id. at 762-63. Even before Ford, this court had held that plaintiffs with excessive absences were not qualified individuals when they failed to perform the essential function of regularly attending their jobs. See Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 (6th Cir. 2004) (concluding that an employee who was terminated because of excessive absences that were unrelated to diabetes was not qualified, and would not be qualified due to these absences even if her accommodation request for medical leave were granted); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (concluding that an employee was not qualified because she had been on a year-long medical leave of absence, and her physician had not released her for work or specified a date on which she would be able to return).

The Ford decision leaves open the possibility that regular attendance might not be an essential function of .every job, but suggests that exceptions will be relatively rare. See EEOC v. Ford, 782 F.3d at 762-63. Here, AT&T’s judgment and much of the evidence in the record support the conclusion that regular attendance is an essential function of the CSR position. AT&T maintains strict Attendance Guidelines, under which absences and tardiness of as little as five minutes result in attendance points. An accumulation of eight attendance points can lead to a CSR’s termination. In addition, the Attendance Guidelines themselves state that regular attendance is an essential function of the CSR position. We regard this statement as persuasive evidence of AT&T’s evaluation of the job, especially because the Attendance Guidelines predate this litigation. See 42 U.S.C. § 12111(8) (providing that written job descriptions “shall be considered evidence of the essential functions of the job” when prepared prior to advertising openings or interviewing for the position at issue); see also EEOC v. Ford, 782 F.3d at 761-62 (explaining that job descriptions prepared prior to litigation are properly considered).

In addition, the declarations of AT&T managers Payne and McArthur support the point that regular attendance is essential to the functioning of the Memphis Call Center for the reasons set forth in Part I.A. above. This court has previously considered similar testimony from employers as evidence that attendance is an essential job function. See, e.g., Brenneman, 366 F.3d at 420 (concluding that regular attendance was an essential function based on a supervisor’s affidavit that the “plaintiffs excessive absences placed a great strain” on the workplace because other employees would have to fill in for the plaintiff, decreasing morale). Williams puts forth no competing evidence on these points. We therefore conclude that regular attendance is an essential function of the CSR position.

Williams’s poor attendance record makes clear that, unless some accommodation was possible, she could not perform the essential function of regularly attending her job. She was absent from work for entire months in 2013 and 2014. Most notably, she took a six-month leave from January to July 2013 and a nearly three-month leave from April 2014 until her termination •in July 2014. Many of her unscheduled absences were not approved for STD leave. Williams accumulated 16 attendance points for these absences, double the 8 points meriting termination under AT&T’s Attendance Guidelines. This was clearly excessive absenteeism.

Williams does not dispute that she was absent on the days documented by AT&T. Before the district court, she challenged only AT&T’s calculation of her attendance points, arguing that the code AT&T used to classify certain absences suggests that points were improperly assessed for some absences that were scheduled in advance. But AT&T produced evidence that the code was in fact properly applied, and Williams has not produced any competing evidence. Williams vaguely maintains on appeal that she disputes AT&T’s calculation of attendance points, but she does not explain how the calculation was incorrect, nor does she cite to any evidence in the record. Unless a reasonable accommodation could be instituted, Williams was not qualified for her job on the basis of her attendance record.

2. Williams failed to propose any reasonable accommodation that would have allowed her to perform the essential functions of her job.

Although this court concluded in Ford that excessive absenteeism was enough to render an employee not qualified, it did not stop there. The. Ford court also evaluated whether the employee had proposed a reasonable accommodation that would allow her to perform the essential functions of her job. EEOC v. Ford, 782 F.3d at 763. It held that the employee’s proposed accommodation — a request to work from home — was unreasonable as a matter of law. Id. Here, Williams has alleged that she would- have been able to perform her essential job functions using a combination of leave, flexible scheduling, and modified break times. We therefore evaluate whether she would have been “otherwise qualified” for her CSR position with these proposed accommodations and, if so, whether these accommodations were reasonable.

a. Williams has not shown that she would have been otherwise qualified with ñexible scheduling and modified breaks.

Williams’s accommodation requests for flexible scheduling and modified breaks were based on the following submissions: (1) Thompson’s evaluation, which stated that' Williams needed a flexible start time and ten-minute breaks every two hours, (2) Williams’s accompanying statement that she was requesting a flexible start time and a modified break schedule, and (3) Williams’s verbal statements to Scruggs and Prude-Anderson that she needed accommodations. But none of these requests explain how the proposed accommodations would have enabled Williams to perform the essential functions of her job.

Williams’s own deposition testimony reveals that she could not have worked on a regular basis even with her requested ac- ■ commodations. She explained in her deposition that she needed the modified break schedule to allow her to calm down after stressful calls. When these calls provoked anxiety attacks, Williams needed to log off of her workstation and cease taking further calls. In other words; Williams essentially admitted that she could not perform her job duties during her anxiety attacks.

Williams provided no explanation for how Thompson’s specific recommendation of ten-minute breaks every two hours would alleviate this problem. Williams admitted in her deposition that she had no way of predicting when her anxiety attacks would occur or how many attacks she would have per day. Breaks every two hours would therefore be inadequate if Williams suffered from an anxiety attack in between scheduled breaks.

In addition, the medical evidence reveals that Williams could not work at all for significant periods of time. Dr. Madakasira opined that Williams was “not fit for work” while she was undergoing treatment in May 2014. On June 11, therapist Debra Butler wrote that Williams was “unable to work at this time due to cognitive impairment and mood disturbance.” And Thompson noted that Williams was unable to work from April 11-30 and May 28-June 8. These excluded work days were listed in the same evaluation that recommended a flexible start time and break schedule, suggesting that Williams would have been unable to work on those dates even with the proposed accommodations.

Finally, Williams herself stated in her appeal of the denial of STD leave that, from May 28 to June 9, she “could not function at work in a call center environment” and “could not focus mentally due to mental illness.” Williams has thus failed to make a prima facie showing that she would have been otherwise qualified even with these accommodations. We therefore need not consider whether these accommodations, as framed by Williams, were reasonable.

b. Williams’s request for additional leave as an accommodation was not reasonable.

Williams also argues that her requests for STD-approved leave doubled as requests for reasonable accommodations under the ADA. This court has previously held that medical leave can constitute a reasonable accommodation under the ADA. See Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 783 (6th Cir. 1998). But even if we were to assume that Williams was qualified for her position with the accommodation of leave, her request for additional leave was unreasonable. An employer is not required to keep an employee’s job open indefinitely. This court has held that additional leave is an objectively unreasonable accommodation where an employee has already received significant amounts of leave and has demonstrated “no clear prospects for recovery.” Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000). A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for recovery, especially where an employee has repeatedly taken leaves of unspecified duration and has not demonstrated that additional leave will remedy her condition. See Maat v. County of Ottawa, 657 Fed.Appx. 404, 412-13 (6th Cir. 2016) (concluding that where an employee had already received substantial leave, additional leave was not a reasonable accommodation because her physician’s vague estimate of a return date was uncertain and indicated that she might need further treatment); Aston v. Tapco Int’l Corp., 631 Fed.Appx. 292, 298 (6th Cir. 2015) (concluding that additional leave was not a reasonable accommodation where an employee had already received a 26-week leave and had provided a physician’s estimate of a return date, but had also submitted evidence that she still needed another medical procedure which would require recovery time beyond that date).

In the present case, AT&T provided Williams with retroactively approved STD leave and allowed her to retain her position for many months before terminating her in July 2014. Williams submitted an evaluation from Thompson that provided a return date of August 15, 2014, but Thompson stated that this date was only an estimate. Given that Williams had a history of taking leaves, that her condition failed to improve during those leaves, and that she repeatedly failed to return to work by dates on which her treatment providers had previously estimated that she would be able to return, requiring AT&T to grant further leave as an accommodation would be unreasonable.

C. Williams’s claim that AT&T failed to engage in the interactive process

Williams also asserts an ADA claim against AT&T for failure to engage in the interactive process. An employer is required “to initiate an informal, interactive process” when necessary to determine how an employee’s disability limits her ability to work and to identify appropriate reasonable accommodations. 29 C.F.R. § 1630.2(o)(3). But an employer’s failure to engage in the interactive process is actionable only if the employee can demonstrate that she was qualified for the position. EEOC v. Ford, 782 F.3d at 766. In other words, if the employee fails to create a genuine dispute of material fact that a reasonable accommodation would have allowed her to perform the essential functions of her job, she cannot survive summary judgment on an interactive-process claim. Id. Because we conclude that Williams has failed to make a prima facie showing that she was qualified for her position as a CSR with or without a reasonable accommodation, we need not consider whether AT&T failed to engage in the interactive process.

D. Disparate-treatment claim

Williams further argues that her termination was the result of unlawful disability discrimination. We analyze dis-abihty-discrimination claims under the McDonnell Douglas burden-shifting framework. Whitfield v. Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). To make out a prima facie case, a plaintiff must demonstrate that (1) she has a disability, (2) she is “otherwise qualified for the position, with or without reasonable accommodation,” (3) she “suffered an adverse employment decision,” (4) her employer “knew or had reason to know” of her disability, and (5) she was replaced or her position remained open. Id. (quoting Macy v. Hopkins Cty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007)). If the plaintiff makes out a prima facie case, the burden then shifts to the employer to demonstrate that there was a legitimate, nondiscriminatory reason for the adverse employment action. Id. The plaintiff must then show that the reason given by the employer was actually a pretext designed to mask unlawful discrimination. Id.

As discussed above, Williams failed to produce sufficient evidence to create a genuine dispute of material fact as to whether she was qualified for her position, with or without a reasonable accommodation. Because we conclude that Williams was not qualified as a matter of law, we need not proceed beyond the prima facie stage. AT&T was therefore entitled to summary judgment on Williams’s disability-discrimination claim.

E.Retaliation claim

Williams’s final contention is that AT&T terminated her in retaliation for requesting an accommodation under the ADA. AT&T responds that it terminated Williams because of her excessive absenteeism, not because of her accommodation requests.

Retaliation claims are also analyzed under the McDonnell Douglas framework where, as here, there is no direct evidence of retaliation. Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). To make out a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity under the ADA, (2) her employer was aware of that activity, (3) she suffered an adverse employment action, and (4) a “causal connection” existed between the protected activity and the adverse action. Id. If the plaintiff does so, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013). The plaintiff must then show that the reason given by the employer was actually a pretext designed to mask retaliation. Id.

Williams contends that her proof was sufficient to establish a prima facie case of retaliation. AT&T disputes this, with the key question being the alleged causal connection between Williams’s requests for accommodation and the termination of her employment. Because we agree with the district court’s determination that AT&T’s articulated reason for firing Williams was both legitimate and nondiscriminatory, we will assume without deciding that Williams established her prima facie case. This allows us to proceed directly to the question of pretext.

To establish pretext, a plaintiff must demonstrate “both that the employer’s proffered reason was not the real reason for its action, and that the employer’s real reason was unlawful.” EEOC v. Ford, 782 F.3d at 767 (emphasis in original). Williams has not created a genuine dispute of material fact under this standard.

Although temporal proximity can demonstrate a causal connection for the purposes of a prima facie case, it alone cannot establish pretext. Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012). Williams cannot create a genuine dispute of material fact on her retaliation claim by simply asserting that she was terminated soon after asking for additional leave. And Williams has produced no other evidence of pretext. There is ample evidence in the record that AT&T was poised to terminate Williams for legitimate business reasons— her poor attendance record—well before late June of 2014. AT&T managers and human resources personnel, including Area Manager Payne and Attendance Analyst Todd-Kyle, discussed terminating Williams as early as June 11. And Payne testified that before terminating Williams, AT&T confirmed that she had enough attendance points for termination without regard to whether her appeal for absences from May 28 onward succeeded.

A reasonable juror could not find that Williams’s termination was pretextual under any of the theories that she asserts. In the section of her brief on disparate treatment, Williams advances three theories to support her claim that AT&T’s use of the Attendance Guidelines to terminate her was pretextual: (1) AT&T failed to follow its own policies, (2) AT&T provided shifting reasons for terminating her, and (3) AT&T inconsistently applied the Attendance Guidelines to other employees. Williams’s brief does not explicitly make this argument with regard to her retaliation claim. But even assuming that Williams has not waived these arguments, she has not put forth sufficient evidence of pretext to create a genuine dispute of material fact.

First, Williams does not cite to any evidence in the record to establish that AT&T failed to follow its policies in terminating her. Williams cites AT&T’s IDSC Guide for the Guide’s explanation of how an employee can request time off as an accommodation, and she argues that AT&T terminated her despite her proper use of this procedure. But the policy that Williams cites addresses procedures for employees, not AT&T, to follow. Williams points to no other evidence of a policy that AT&T failed to follow. She insists that AT&T engaged in a pattern of denying STD leave, assessing attendance points against her, retroactively approving STD leave, and ultimately “us[ing] the alleged incurred points to fire her.” The record in fact reflects that AT&T denied Williams’s STD leave requests on multiple occasions and then retroactively approved them. But this does not indicate a discriminatory or retaliatory motive.

Whenever AT&T retroactively approved STD leave, any attendance points that Williams incurred during the relevant time period were removed. And when calculating the attendance points needed to terminate Williams, her managers assumed that her final STD leave request, which had initially been denied, would be approved. They ultimately concluded that her absenteeism was a terminable offense even without the disputed points.

Second, Williams has not created a genuine dispute of material fact regarding her claim that AT&T provided “changing rationales” for terminating her. She argues that AT&T’s final return-to-work letter provided her with an explanation of how she could obtain approval for additional leave and keep her job. Her termination after she followed those instructions, she contends, was inconsistent with this letter and occurred “without warning.” Williams argues that AT&T informed her that she was terminated either because she had failed to properly make an ADA request for leave as an accommodation or because her request for leave had not been approved. She appears to be referring to her termination letter, although she does not cite it. The “shift” in AT&T’s reasoning, according to Williams, is its invocation of the Attendance Guidelines as an explanation for her termination after sending her this letter.

A reasonable juror could not find that these alleged shifting reasons for termination were pretextual. True enough, the termination letter did state that Williams’s failure to properly request leave for her absences after May 27 was the reason for her termination. Attendance points were not mentioned in that letter. But the other evidence in the record overwhelmingly indicates that Williams’s managers at AT&T were careful to ensure that they did not factor absences meriting STD leave into Williams’s termination, gave Williams multiple chances to return to work before firing her, and decided to terminate her based on unscheduled absences that had resulted in attendance points. Evidence documenting this legitimate, nondiscriminatory rationale for termination predates the termination letter on which Williams so heavily relies.

Furthermore, the cases on which Williams relies, for the proposition that shifting reasons can constitute pretext are factually distinguishable from the present ease. They involve situations where an employer’s proffered reason for termination changed after litigation commenced, or where an employer claimed that an employee was terminated for alleged poor performance but had not previously informed the employee that his or her performance was inadequate. See, e.g., Pierson v. Quad/Graphics Printing Corp., 749 F.3d 530, 540-41 (6th Cir. 2014) (concluding that evidence of shifting reasons created a genuine dispute of material fact where the employer initially told the plaintiff that he was fired due to a reduction in the workforce, but later informed the plaintiff that his poor performance was the reason for termination when the plaintiff mentioned appealing the decision); Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 589-92 (6th Cir. 2002) (concluding that there was a genuine dispute of material fact regarding pretext where the employer claimed that an employee was fired for poor work performance, but repeatedly gave him merit-based bonuses, did not inform him of performance deficiencies until after terminating him, and did not mention poor performance as a rationale for the termination until answering interrogatories for the purposes of litigation).

In contrast to the plaintiffs in the above cases, Williams had been repeatedly warned about her attendance issues throughout the course of her employment. And AT&T produced evidence predating its termination decision to show that Williams’s absenteeism was the actual reason for her termination. We conclude that Williams has failed to produce sufficient evidence to create a genuine dispute of material fact as to whether her excessive absenteeism was not the “real reason” for her termination. See EEOC v. Ford, 782 F.3d at 767.

Finally, Williams asserts as evidence of pretext that AT&T treated her differently from other employees under the Attendance Guidelines. She produced the attendance records of several other employees in support of this argument. The district court noted that these records had not been properly authenticated, but concluded that even if they were authenticated at trial, Williams had not provided enough context to establish that she was treated differently from similarly situated coworkers.

We agree that the attendance records are insufficient to create a genuine dispute of material fact. To establish pretext, Williams must show that these coworkers were “similarly situated” to her, meaning that they had the same supervisor, were governed by the same standards of conduct, and had committed the same Attendance Guidelines violations as Williams, without any “differentiating or mitigating circumstances” that would merit different treatment. See Smith v. Leggett Wire Co., 220 F.3d 752, 762 (6th Cir. 2000) (quoting Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998)). Williams must also show that these coworkers were not fired despite engaging in conduct that was substantially similar to hers. Id. The attendance and disciplinary records in themselves do not provide any context about the types of absences at issue or the coworkers’ circumstances. Williams offers her own unsubstantiated speculations about what the records show in her response to AT&T’s statement of facts, but this does not set out facts that would be admissible at trial and therefore is not sufficient evidence to create a genuine dispute of material fact. See Fed. R. Civ. P. 56(c).

III. CONCLUSION

In the end, this case reflects the reality that there are some jobs that a person with disabilities is simply unable to perform. A blind person cannot be an airline pilot, nor can one with advanced Parkinson’s disease be a neurosurgeon. Similarly, a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR. We therefore AFFIRM the judgment of the district court.


author: SILER, Circuit Judge.

text:
    Daniel MOODY, Plaintiff-Appellant, v. MICHIGAN GAMING CONTROL BOARD; Scott McLeay; Steven J. Ferrari; Al Ernst; Norma Cole; Eric Pertinnen; Jim Curran; Richard Kalm; John Lessnau, Defendants-Appellees.
    No. 16-1155
    United States Court of Appeals, Sixth Circuit.
    Argued: December 8, 2016
    Decided and Filed: February 2, 2017

      ARGUED: Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellant. Thomas R Nafso, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees. ON BRIEF: Hugh M. Davis, CONSTITUTIONAL LITIGATION ASSOCIATES, P.C., Detroit, Michigan, for Appellant. Thomas R Nafso, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
    Before: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.
   OPINION

SILER, Circuit Judge.

Daniel Moody (“Moody”) appeals from the district court’s dismissal of his First Amendment retaliation claim for lack of standing. For the following reasons, we affirm the district court’s decision.

I. Factual and Procedural History

Moody is a horse trainer engaged in harness racing and is the trainer of record for his family farm. Defendants are the Michigan Gaming Control Board (“MGCB”) and various individual employees (“individual defendants”) of the MGCB. Moody’s father, John Moody (“John”), was suspended and excluded by the MGCB in 2010. John later publicly criticized and sued the MGCB over those actions. In 2011, an anonymous email led to the investigation of Moody by the MGCB. The purpose behind this investigation was to determine whether Moody was only a “paper trainer” for his father, who could no longer participate • in activities related to racing.

The MGCB held a hearing in May 2012, during which it looked into such issues as trainer responsibility at the Moody farm, Moody’s tax returns and billing records, and the business practices of the farm. Another hearing was held in July 2012 to investigate certain issues further. These issues included whether Moody was giving a disqualified person (his father) access to racing; Moody’s failure to remove the name of a groom from the stable list when the groom was no longer employed at the farm; and Moody’s failure to cooperate by not returning a call from an investigator for the MGCB. The MGCB also requested that Moody produce his tax returns and a list of horses, owners, and training contracts.

At the hearings, Moody testified that John, Sarah Garver, and Moody's cousin David, all worked on the farm. He said that John worked around the stables but once a horse began racing, John no longer had contact with that horse. Moody also presented his tax returns and was directed to sign a 4506-T authorization to allow the IRS to release his tax filing information to the MGCB. Moody believed his tax preparer, Sandy Hennessy, had e-filed his 2010 and 2011 tax returns with the IRS. However, Hennessy told the investigators that only the 2011 tax return had been e-filed but that Moody had not been notified of this issue. A third hearing was held in November 2012, which essentially dealt with the same issues as in the previous hearings.

In December 2012, when Moody attempted to file his application for 2013 licensing, he was disqualified from racing until June 2013 for the matters discussed at the November hearing. In January 2013, a consent order was prepared that would have allowed Moody to begin participating in racing in March 2013, but it required Moody to agree not to take legal action against the MGCB. However, because Moody did not sign the consent order, he remained disqualified for six months. He appealed that suspension. In September 2013, Moody was told by the MGCB that he could apply for licensure without any of the preconditions that were proposed. The parties settled, and the administrative law judge dismissed the case.

In 2015, Moody filed a complaint under 42 U.S.C. § 1983 in the Eastern District of Michigan. He raised three different counts in this complaint, against both the MGCB and individual employees in their official and individual capacities. In Count I, he argued that he suffered First Amendment retaliation in the form of his disqualification from racing due to his father’s actions in filing suit against the MGCB. In Count II, he argued that he had a liberty interest in his right to engage in the harness-racing industry, and that Defendants had deprived him of that right. In Count III, he claimed that he had a property interest in his licenses to train and race, and that he was deprived of that interest without due process.

Later, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court held that the MGCB was protected against suit due to Eleventh Amendment immunity and that neither the MGCB nor the individual defendants in their official capacities were “persons” subject to suit under 42 U.S.C § 1983. The court then dismissed all claims against the MGCB and the official-capacity claims against the individual defendants. As to the First Amendment claim, the court stated that for third-party standing, there must be a "hindrance to the third party’s ability to protect his own interest. Noting that Moody alleged an injury and a close relationship between himself and his father, the court nevertheless found that Moody failed to show a hindrance to his father’s ability to protect his own rights. As John had filed his own lawsuit against the MGCB and related defendants alleging constitutional violations arising out of the MGCB’s investigation of him, the court ruled that Moody failed to show a hindrance preventing John from asserting his own rights, leaving Moody unable to claim third-party standing. The court also found that Moody did not have a liberty interest in his license, and that he had not been deprived of procedural due process, as several hearings were held both before and after his license was suspended. As such, the court dismissed all counts of the complaint.

Moody later filed a motion to reconsider, pointing to the fact that the trial court did not permit John to amend his complaint and add a First Amendment claim for the alleged retaliation against his son. The court denied the motion. Moody then appealed, arguing that the court erred in finding that John was not hindered from protecting'his interests and that Moody has third-party standing to raise the First Amendment retaliation claim.

II. Analysis

A. Standard of Review

We review a district court’s dismissal of claims pursuant to Federal Rule of Civil Procedure 12(b)(6) de novo. Winget v. JP Morgan Chase Bank, N.A., 587 F.3d 565, 572 (6th Cir. 2008). As with the consideration by a district court, an appellate court accepts the plaintiffs factual allegations as true and views the complaint in the light most favorable to the plaintiff, but is not required to accept legal conclusions or unwarranted factual inferences as true. Id. at 575.

B. Moody Lacks Third-Party Standing

Standing is a threshold issue for bringing a claim in federal court and must be present at the time the complaint is filed. See Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004). A plaintiff may assert his “own legal rights and interests,” but generally, a litigant may not sue to protect the constitutional rights of a third party. Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). This . bar, however, is not absolute. Id. A plaintiff may raise a constitutional claim on behalf of a third party if he can prove (1) injury-in-fact to the plaintiff, (2) a close relationship between the plaintiff and the third party whose rights he asserts, and (3) a hindrance preventing the third party from raising his own claim. See Kowalski, 543 U.S. at 129-30, 125 S.Ct. 564; Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 208 (6th Cir. 2011); Fieger v. Ferry, 471 F.3d 637, 649 (6th Cir. 2006). A close relationship between the litigant and third party ensures that the plaintiff will effectively advocate for the third party’s rights. Kowalski, 543 U.S. at 129, 125 S.Ct. 564.

In this case, the district court agreed that Moody met the first two requirements for third-party standing in that he had alleged an injury (temporary disqualification from horse racing) and a close relationship between himself and the third party (father and son). Moody’s case was dismissed because the court found that there was no hindrance preventing John from protecting his own rights. John had filed his own suit against the MGCB and individual defendants, and thus John was able to pursue his own interests in court. Accordingly, the issue now before us is whether the district court erred when determining that no hindrance existed.

Determining the existence of a hindrance requires examining “the likelihood and ability of the third parties ... to assert their own rights.” Powers v. Ohio, 499 U.S. 400, 414, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Courts have found the following to constitute a hindrance that keeps a third party from protecting his or her own rights: deterrence from filing suit due to privacy concerns, imminent mootness of a case, or systemic practical challenges to pursuing one’s own rights. See Powers v. Ohio, 499 U.S. 400, 414, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (permitting criminal defendants to raise equal-protection challenges to race-based peremptory strikes due to the limited potential equitable relief, small financial stake, and cost of litigation, all of which keeps jurors from raising the claims themselves); Singleton v. Wulff, 428 U.S. 106, 117, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (allowing physicians to challenge a law excluding abortions from Medicaid coverage because women may be chilled from filing suit due to a desire to protect their privacy and because of the risk that the case would soon be moot); Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d at 208 (collecting cases). Although this list is not exclusive, authority suggests that “[n]o practical barriers exist if the third party actually asserts his own rights.” Hodak v. City of St. Peters, 535 F.3d 899, 904 (8th Cir. 2008).

Moody presents two arguments as to why his father is effectively hindered from protecting his own interests. He first argues that his father’s lack of standing is itself a hindrance. He contends that because his father did not suffer an injury due to the retaliation against Moody, his father would not have the same incentive to vigorously litigate this claim as Moody does. Moody also argues that even though John sued the MGCB, he was unable to raise the exact retaliation claim at issue now because his attempt to amend the complaint and add this claim was determined to be untimely by the district court.

Moody, however, fails to point to any case where a lack of standing constituted a hindrance. Furthermore, there is no case law establishing that a failure to timely amend or file a claim is a hindrance. This is not a case where there might be a chilling effect on speech, as John had already engaged in protected speech, and Moody offers no statement that John’s behavior changed due to the actions taken against Moody by the MGCB. John was not faced with systemic practical difficulties, imminent mootness, or a desire to protect his privacy. Nor did he face any other apparent hindrances that would keep him from asserting his own rights. Trying to get this claim into court through third-party standing appears to be an attempt to circumvent the court’s denial of John’s motion to amend as untimely. That is not a hindrance.

Moody also attempts to frame his argument as one about close familial relationships, and cites several cases in support. In Adkins v. Board of Education of Magoffin County, 982 F.2d 952, 953 (6th Cir. 1993), the plaintiff claimed that her employment was terminated due to the actions of her husband. More specifically, she argued that the defendants violated her First Amendment right of association and that she was dismissed “for affiliation and association with her husband and others with whom she had a right to associate.” Id. There was no lack of standing because she claimed an injury based on her own protected actions — the right to associate with whom she chose — not the protected actions of a third party. In Sowards v. Loudon County, 203 F.3d 426, 430 (6th Cir. 2000), the plaintiff worked for the sheriff’s department and claimed that she was retaliated against because her husband was running against the current sheriff. She sued, arguing that she was terminated in retaliation for the exercise of her First Amendment rights of political and intimate association. Id.

These cases are easily distinguishable from the instant case. The plaintiffs in Adkins and Sowards engaged in the protected action, that of familial/intimate association, and were not seeking to invoke third-party standing. Moody never asserted in his complaint that he was retaliated against for constitutional association with his father or that his relationship with his father was impaired due to the Defendants’ actions. In fact, Moody clearly said that it was his father’s protected First Amendment actions that formed the foundation of the retaliation claim, and Moody was seeking to use third-party standing to assert that claim. Furthermore, at oral argument, Moody conceded that he was not bringing a claim based on familial association, so we fail to see how the reasoning in Adkins and Sowards applies to Moody’s case.

As Moody fails to show a hindrance preventing his father from protecting his own rights, we agree that Moody lacks third-party standing to bring the retaliation claim.

AFFIRMED.

      . The court denied John's motion to amend because it was untimely, not based on the merits.

      . Moody does not appeal the dismissal of Counts II and III, which dealt with his alleged liberty interest and lack of procedural due process. Nor does he challenge the immunity ruling and subsequent dismissal of MGCB and the official-capacity claims against the individual defendants.


author: POSNER, Circuit Judge.

text:
    MCGARRY & MCGARRY, LLC, Plaintiff-Appellant, v. RABOBANK, N.A., Defendant-Appellee.
    No. 16-3164
    United States Court of Appeals, Seventh Circuit.
    Argued January 5, 2017
    Decided January 26, 2017

      William Dunnegan, Attorney, Dunnegan & Scileppi LLC, New York, NY, Marianne C. Holzhall, Attorney, McGarry & McGar-ry, Chicago, IL, for Plaintiff-Appellant.
    Allison A. Davis, Harvey S. Schochet, Attorneys, Davis Wright Tremaine LLP, San Francisco, CA, Charles M. English, Jr., Attorney, Davis Wright Tremaine LLP, Washington, DC, Michael T. Brody, Attorney, Jenner <& Block LLP, Chicago, IL, for Defendant-Appellee.
    Before POSNER, MANION, and WILLIAMS, Circuit Judges.
   POSNER, Circuit Judge.

Bankruptcy Management Solutions, Inc. (“BMS” for short) provides a variety of administrative services, including software and banking services, to bankruptcy trustees. See www.google.com/?gws_rd= ssl#q= Bankruptcy+Management+Solutions% 2C + Inc (visited Jan. 26, 2017). It is not a bank, but it uses a bank, Rabobank, N.A., as the depositary for the banking services that BMS provides to bankruptcy trustees through its software. Rabobank appears to be the largest provider of depositary services to such trustees, just as BMS apparently is the largest supplier to them of software that makes it easier for a bankruptcy trustee to manage a bankruptcy by helping him keep track of documents, distribute money to creditors, and comply with reporting obligations.

Eugene' Crane, the trustee in the bankruptcy of a company named Integrated Genomics, Inc., hired BMS to provide a variety of services in Integrated’s bankruptcy proceeding. The parties’ contract required the trustee to hire Rabobank to provide banking services to him in the proceeding and to deposit with the bank substantially all of the funds in any bankruptcy estate in which the trustee uses BMS’s services. A separate contract between the trustee and the bank, to which BMS was not a party, authorized Rabo-bank to withdraw from the funds a monthly fee for the services it renders in the bankruptcy proceeding. These contracts may have been the product of a prior agreement between BMS and Rabobank in which BMS promised Rabobank that it would require trustees who used its services to hire Rabobank and Rabobank promised BMS that it would remit to BMS a portion of the fees it obtained.

The plaintiff, a law firm, was a modest creditor of Integrated and filed a claim in the bankruptcy proceeding, at the conclusion of which it received a distribution of $12,472.55. It would have received $12,666.90. had not the trustee deducted $194.35 to pay for a small part of Rabo-bank’s fee for providing banking services to him, and even more had Rabobank paid interest on the bankruptcy estate’s deposits, which it did not.

The plaintiff alleges that the three contracts — between Rabobank and BMS, between the trustee and BMS, and between the trustee and Rabobank — violated 12 U.S.C. § 1972(1)(E), a section of the Bank Holding Company Act that states that “a bank shall not in any manner extend credit, lease or sell property of any kind, or furnish any service, or fix or vary the consideration for any of the foregoing, on the condition or requirement ... that the customer shall not obtain some other credit, property, or service from a competitor of such bank, a bank holding company of such bank, or any subsidiary of such bank holding company, other than a condition or requirement that such bank shall reasonably impose in a credit transaction to assure the soundness of the credit.” The plaintiff argues that by requiring the trustee in the Integrated bankruptcy to obtain banking services exclusively from Rabo-bank, the bank conditioned its provision of services on the trustee’s not obtaining equivalent services from a competitor of that bank, and so violated the Act.

The district judge was right to reject the argument. The plaintiff fails to distinguish between exclusive dealing and a single transaction. Had Rabobank conditioned its provision of services to trustee Crane on his agreeing never to hire any bank other than Rabobank in any bankruptcy proceeding in which he’s the trustee, that would be exclusive dealing. But if, as in this case, all Crane decides is that he needs a bank — not a bunch of banks — to provide banking services to him in a particular bankruptcy of which he’s the trustee, there is no exclusivity; in his next trusteeship Crane will be free to hire a different bank. He may well hire Rabo-bank the next time too, assuming he wants to hire BMS, since BMS and Rabobank work closely together and in the present case BMS made it a condition of agreeing to work with the trustee that he hire Ra-bobank. But again it would be a decision based on the trustee’s needs in a new and different case, not based on a commitment made before the new case existed. Although Crane has agreed that in any future case in which he is a trustee and hires BMS he will hire Rabobank as well, he has not committed to hiring BMS, and if he doesn’t then he won’t have to hire Rabo-bank. The fact that he prefers to work with these two companies is not a commitment not to work with any others and therefore to deal exclusively with those two.

Exchange National Bank of Chicago v. Daniels, 768 F.2d 140, 143 (7th Cir. 1985), “construed [12 U.S.C.] § 1972 as prohibiting exclusive dealing practices — those that attempt to prevent customers from dealing with other banks.” The customer in this case was trustee Crane. No one forced him to deal with BMS and Rabobank. He chose to deal with them rather than with other suppliers of banking services because they’re highly experienced in the provision of the services that the trustee required. Suppose your doctor tells you to take an 81 mg aspirin every night before going to bed, in order to reduce the likelihood of a heart attack. So you go and buy a small bottle of Bayer 81 mg aspirin. After a while it runs out and you buy another, identical, bottle of Bayer 81 mg aspirin. And so on indefinitely. Could a competitor of Bayer sue you for engaging in exclusive dealing, because you refuse to deal with Bayer’s competitors? No, and the premise of the plaintiffs suit is as flimsy.

There is another ground on which the plaintiffs claim must be rejected. The only quantified harm he incurred was the $194.35 fee deducted from his share of the distribution of the bankrupt’s assets to the creditors in order to compensate Rabo-bank for a share of the services that the bank had rendered in the bankruptcy proceeding — had rendered to all the creditors, including the plaintiff. There is no evidence, or even an argument, that the fee was exorbitant, or that it would have been any lower had the trustee been allowed to hire a different bank or a plurality of banks.

The judgment of the district court dismissing the plaintiffs suit with prejudice is

Affirmed.