GLEN McDANIEL v. KINDRED HEALTHCARE, INC., dba Kindred Hospital

The Honorable Michael H. Watson, United States District Judge for the Southern District*
of Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0091n.06
Filed: February 3, 2009
No. 08-5384
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GLEN McDANIEL,
Plaintiff-Appellant,
v.
KINDRED HEALTHCARE, INC., dba
Kindred Hospital,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
EASTERN DISTRICT OF TENNESSEE
Before: MARTIN and COOK, Circuit Judges; WATSON, District Judge*
COOK, Circuit Judge. Plaintiff-appellant Glen McDaniel appeals the decision of the district
court to enter summary judgment for defendant-appellee Kindred Healthcare, Inc. McDaniel sued
Kindred Healthcare, Inc. under Title VII and the Age Discrimination in Employment Act (“ADEA”).
On appeal, McDaniel does not press his ADEA claim and does not challenge the district court’s
determination that the statute of limitations bars some of his Title VII claims. As for the claim he
does appeal, our review of the record, the applicable law, and the parties’ briefs convinces us that
the district court judge’s memorandum opinion carefully and correctly set out the facts and the
governing law, and because a full opinion from this court would be duplicative and serve no

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No. 08-5384
McDaniel v. Kindred Healthcare, Inc.
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jurisprudential purpose, we affirm the grant of summary judgment to defendant-appellee, adopting
the reasoning of the district court’s February 26, 2008 memorandum resolving McDaniel’s timely
Title VII claims.
We reject McDaniel’s argument, drawn from a law review article written by Professor Suja
A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139 (2007), that summary
judgment violates the Seventh Amendment. This argument lacks merit. We agree with a prior panel
of this court that recently examined the same law review article and rejected the same argument:
Although the historical examination that Professor Thomas provides is interesting .
. . . [t]he Supreme Court has held that summary judgment is constitutional, see
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336, (1979) (citing Fidelity & Deposit
Co. v. United States, 187 U.S. 315, 319–21, for support of the proposition that
summary judgment does not violate the Seventh Amendment), and it has continued
to apply the Rule 56 summary judgment standard. See, e.g., Beard v. Banks, 548
U.S. 521 (2006). Thus, it would be inappropriate for us to hold that the summary
judgment standard is unconstitutional.
Cook v. McPherson, 273 Fed. App’x 421, 425 (6th Cir. 2008).
Affirmed.

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