concurring in part and dissenting in part.
I concur in the portion of Judge Keith’s opinion that holds that plaintiff was not required to exhaust administrative remedies.
I dissent from the holding that defendant is liable under state law when plaintiff admitted that she was physically unable to perform the essential duties of her job in that she could not lift patients. As the majority notes, Section 8-50-103 of the Tennessee Human Rights Act makes it unlawful for an employer to discriminate against an individual based solely upon any handicap of the individual, “unless such handicap to some degree prevents the applicant from performing the duties required by the employment sought or impairs the performance of the work involved.” A plaintiff bears the initial burden of establishing a prima facie case of discrimination. To carry this burden, plaintiff must show: (1) the existence of a handicap, and (2) that she can perform the duties of the job despite the handicap. Only when plaintiff presents a prima facie case, does the burden then shift to the employer to show that its job requirements are bona fide occupational requirements. Abraham v. Cumberland-Swan, Inc., No. 90CV-1064, slip op. at 13-14, 1992 WL 207775 (Tenn.App. Aug. 28, 1992). Abraham involved a similar situation where the plaintiff admitted that her handicap prevented her from performing her job. The court ruled that the plaintiffs admission precluded her from establishing a prima facie case under the plain language of section 8-50-103. Id. at 14. The Abraham court also found even if the plaintiff had established a prima facie case, the Tennessee statute does not impose a duty upon the employer to accommodate by reassigning her to a vacant position. Id. at 14-15 (citing Wimbley v. Bolger, 642 F.Supp. 481 (W.D.Tenn.1986), aff'd, 831 F.2d 298 (6th Cir.1987)); see also, Turner v. Eagle Distributing Co., No. 03A01-9209-CH-00338, 1993 WL 88365 (Tenn.App. March 29, 1993) (Tennessee law imposes no duty upon an employer to make accommodations for a handicapped employee *475who admittedly cannot perform the duties of his job).
In the present ease, Tuck acknowledged that all hospital nurses, whether charge nurses or staff nurses, must perform certain essential functions including walking from the nurses station to a patient’s room; lifting from time to time; hanging IVs; lifting trays out of a patient’s way; rolling a patient over the bed; changing dressings; picking-up a patient who has fallen; and administering Cardio Pulmonary Respiration (CPR). Tuck also agreed that a nurse working on either the Orthopedic Unit or the Progressive Care Unit (PCU) must perform these duties. Tuck admitted that she could not perform some of these duties. In her deposition testimony of January 31, 1991, she stated that during her time on the PCU, she could not lift patients from their beds to perform certain treatments, and found it nearly impossible to assist patients in and out of bathtubs.
By virtue of her own admissions, Tuck failed to establish a prima facie case of discrimination under section 8-50-103; her testimony shows that her back condition “to some degree prevents [her] from performing the duties required by [her job].” Since Tuck cannot carry her burden, there is no actionable discrimination claim under Tennessee law.
The majority acknowledges that Tuck could not perform the regular duties of a nurse, but holds that when the hospital accommodated her by creating a light duty position specifically for her that would not require lifting or extensive walking, that became her job and she is, therefore, entitled to recover if she was discharged from that job because of her handicap. The majority cites no authority for its holding. I can see no basis for holding an employer liable for failing to continue to accommodate an employee whom it had no obligation to accommodate in the first place. Certainly from a policy standpoint such a holding is harmful to the disabled. Tennessee employers are unlikely to try to accommodate handicapped employees if they will be held liable if the accommodation does not work out, but are not liable where they make no effort to accommodate.1
I would also reverse the District Court’s judgment under the Rehabilitation Act and remand for further proceedings.
Section 504 of the Rehabilitation Act provides in pertinent part:
No otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving Federal financial assistance....
29 U.S.C.A. § 794 (West Supp.1992). A prima facie case under section 504 requires proof that the plaintiff is: (1) a handicapped individual; (2) that she is “otherwise qualified” for the position held; (3) that she was terminated from the position “solely by reason of [her] handicap”; and (4) that the position was part of a program or activity receiving federal financial assistance. See Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 441 (6th Cir.1991). In addition to stipulating that Tuck was a handicapped individual, the parties also stipulated that the hospital regularly received federal financial assistance. Thus, the only two disputed issues are (1) whether Tuck is an “otherwise qualified handicapped individual,” and (2) whether she was terminated “solely by reason of her handicap.”
Whether one is an “otherwise qualified handicapped individual” involves a two-level inquiry. First, the court asks whether the handicapped individual can perform the essential duties of the position, with or without accommodation, despite the existence of the *476handicap. Jasany v. United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir.1985) (quoting 29 C.F.R. § 1613.702(f)). On this issue, the District Court found that Tuck could not perform the essential duties of a registered nurse on the Progressive Care Unit (“PCU”), in the absence of reasonable accommodation by the hospital. The court found her biggest limitation to be her inability to lift heavy objects, especially patients, and that lifting heavy objects is an essential duty of a nurse assigned to the PCU.
The next level of the “otherwise qualified” inquiry asks whether the plaintiff could perform the essential functions of the job with reasonable accommodation. Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir.1988).2 The District Court concluded that Tuck “could have performed adequately the essential functions of the job with reasonable accommodations by the hospital,” but that the hospital had failed to make reasonable accommodations. On this point, the court did not discuss the arrangement the hospital had made so that Tuck could work on the PCU. Nor did the court suggest what the hospital could have done to accommodate Tuck in her job on the PCU. Nor did it make a finding that Tuck was performing satisfactorily on the PCU. Instead, the court based its finding that the hospital did not accommodate Tuck on the fact that at the time she was terminated, the hospital was running regular advertisements for a variety of nursing positions for “full time, part time ... on all shifts, both 8 and 12 hour compensation. [The hospital] also [had] 4 and 6 hour shifts available.” The court concluded that the hospital did not offer any of these positions to Tuck, and had failed to show that placing her in an advertised position with shorter hours would have imposed an undue burden upon it.
I believe this finding was clear error for two reasons. First, as the court itself notes, there were no vacancies in any positions with shifts shorter than twelve hours.3 Cathy Parrish, the Chief Nursing Administrator, testified that the hospital ran the same advertisement almost every week whether or not the hospital had any open positions for the purpose of having a constant pool of applicants. Moreover, Parrish did not believe Tuck was qualified for any of the advertised positions even if there were vacancies. Tuck did testify that she believed she could have filled advertised positions for 8, 6 and 4 hour shifts on the medical oncology unit, the newborn nursery, and possibly the medical/pediatric/surgical unit. This testimony does not rebut the hospital’s evidence that there were no vacancies for these positions. Parrish also testified that because Tuck had informed her that she was interested only in full-time positions because she needed the benefits, any 4 or 6 hour shifts, if available, were also ruled out because they did not include benefits.
Second, even if there were openings in other units that Tuck was qualified for, the hospital had no duty under the Act to reassign her to another position. See Wimbley, 642 F.Supp. at 486; see also, Carter v. Tisch, 822 F.2d 465, 467 (4th Cir.1987) (“The case law is clear that, if a handicapped employee cannot do his job, he can be fired, and the employer is not required to assign him to alternative employment.”); Black v. Frank, 730 F.Supp. 1087, 1091 (S.D.Ala.1990) (Rehabilitation Act does not require reassignment of handicapped employees, therefore, “an employee is properly fired if he cannot perform the essential functions of his given posi*477tion”). I would hold that the District Court erred when it found that the hospital’s failure to reassign Tuck violated the Act.
The Act does impose affirmative actions upon employers to make reasonable accommodations. The employer bears the burden of showing that it cannot reasonably accommodate a particular employee. Hall, 857 F.2d at 1080. Once this is shown, the plaintiff must come forward to rebut this evidence. Jasany, 755 F.2d at 1251 (citing Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir.1981)). We have held that an accommodation is not reasonable if it imposes an undue burden upon the employer. Hall, 857 F.2d at 1080. We have also held that an employer is not required to eliminate an essential function of the job to accommodate a handicapped employee. Id. The employer bears the burden of showing that a requested accommodation would result in the elimination of an essential function. Id.
There was evidence that the hospital could accommodate plaintiff by providing the job on the PCU since it did so. It is difficult for the employer to argue that it could not accommodate her in this fashion if, as she testified, she was able to satisfactorily perform the restricted duties and other employees were willing to perform her duties. The employer presented evidence that plaintiff could not or would not perform the expected restricted duties and that the other nurses were unwilling to continue to do the lifting for her patients. If she could not, or if the other nurses were unwilling to assume part of her duties, then the hospital either needed to accommodate her in some other way or she was not “an otherwise qualified handicapped individual” who could be accommodated. If she would not perform the assigned duties and they constituted a reasonable accommodation, then, of course, she was not fired on account of her handicap. The District Court made no finding of which witnesses it believed. The other nurses testified that plaintiff failed to attend to their patients in exchange for their doing the required lifting of her patients. Her supervisor testified that when the unit was shorthanded, plaintiff spent her time on the phone complaining of the situation rather than performing her assigned tasks. Plaintiff testified she performed all the duties she was capable of satisfactorily performing. The District Court must make a finding on these disputed facts. If it finds plaintiff could not perform even with the accommodation provided, it must make some finding of what other accommodation the hospital should have made to accommodate plaintiff.
Accordingly, I would remand the action to the District Court for such findings.
. Although the majority speaks of a "restricted duty program” as if that were a job description, the only evidence was that the hospital attempted to accommodate nurses, as for example pregnant nurses, where their colleagues were willing to perform some of their duties on a voluntary basis. The hospital did not have a slate of positions within a restricted duty program. A list of such positions was available in the Human Resources Department; however, there is no evidence that plaintiff was assigned to one of these positions or that she was qualified for or requested one of these positions if any were available. Rather, a special accommodation was made for her.
. What constitutes an essential element of the job is a legal conclusion that is reached by the trial court after conducting a highly fact-specific inquiry. Hall, 857 F.2d at 1079. In Hall, there was a dispute over whether or not heavy lifting was an essential element of the job that the plaintiff was seeking. We stated that this determination should reflect the actual demands of the job and should not hinge solely upon an employer's official job description. Here, heavy lifting is undisputably a job requirement that plaintiff could not perform in the absence of accommodating measures.
. After stating that the hospital did not offer Tuck an "open position,” the court dropped the following footnote:
The court notes that Periy Stahlman, the hospital's Director of Human Resources, stated in his deposition that Mrs. Tuck was not offered any job with a shift shorter than twelve hours because "[t]here weren't any vacant. ...”