RAYMOND L. ERICKSON, United States Magistrate Judge.
At Duluth, in the District of Minnesota, this 24 day of July, 2000.
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to the consent of the parties, made in accordance with the provisions of Title 28 U.S.C. § 636 (b)(1)(C), upon the Defendant's Motion for Summary Judgment.
A Hearing on the Motion was conducted on February 8, 2000, at which time the Plaintiff appeared by Jeffrey R. Hannig, Esq., and the Defendant appeared by Teresa M. Thompson, Esq.
For reasons which follow, the Defendant's Motion for Summary Judgment is granted.
II. Factual and Procedural History
The Plaintiff worked for the Defendant as a detention officer from July 15, 1987, through November 17, 1995. Plaintiff's Memorandum, at 1; Deposition of Kathy Johnson, p. 35, Affidavit of Teresa M. Thompson, Ex. A. On October 1, 1995, the Plaintiff was injured during an inmate disturbance, during which she suffered an injury to her lower back and right knee. Johnson Depo., p. 35. The Defendant asserts, and the Plaintiff does not challenge, that, after the Plaintiff's injury, on or about November 18, 1995, she was excused from work by her treating physician. Affidavit of Karen A. Lundin ¶ 3. She never returned to her detention officer job, because of her continuing inability to perform the essential functions of that position. Plaintiff's Memorandum, at 1.
In April of 1996, an occupational therapist, Robert Dahl ("Dahl"), informed the Defendant that the Plaintiff did not meet the physical requirements of her previous detention officer position.Lundin Aff. ¶ 5. Dahl recommended that the Plaintiff be placed in a "work hardening" program, before she should, again, be considered for a return to her prior job with the Defendant. Id. Up to that point, the Plaintiff had not been able to perform tasks, which were associated with that position, for approximately five months. In late August, or early September of 1996, the Plaintiff's treating physicians, Dr. Philip Q. Johnson, and Dr. Scott Turner, informed the Defendant that the Plaintiff remained unable to return to her regular duties as a detention officer. Id. ¶ 8. Both parties agree that the Plaintiff, at all times following her injury, has been unable to perform her past work as a detention officer. Johnson Deposition, p. 124-26, Lundin Aff., Ex. A.; see also, Plaintiff's Memorandum, at 12; Defendant's Memorandum, at 15.
The Defendant relates that, notwithstanding the fact that the Plaintiff had not requested an accommodation, in the form of a reassignment to another position, it had considered her for such a position but, ultimately, concluded that there were no positions, which were then available, that would satisfy her physical limitations.Lundin Aff. ¶ 4. The Plaintiff also participated in a job placement search at the expense of the Defendant. Thompson Aff.,Ex. E. In March of 1997, the Plaintiff worked for one to two hours per day for the United States of America Snowboarding Association ("USASA"). Later, in November of 1997, the Plaintiff left her position with the USASA, and began working for Banner Engineering. She worked at Banner for five hours per day, five days per week.Id., Ex. C, at 5.
In late March, or early April of 1997, the Plaintiff applied for a Clerk-typist position with the Defendant. Lundin Aff., Ex. 7. The Defendant notified the Plaintiff that she would not be considered for the second phase of the application process, based upon her performance in the initial phase of the application process. Johnson Aff., Ex. 3. Thereafter, on July 8, 1997, the Plaintiff applied for an Administrative Assistant position with the Defendant. Lundin Aff., Ex. 8. Again, because the Plaintiff did not rank among the top 7 of the 34 applicants, who applied for the position, she was not asked to interview for the position. Id.; Johnson Aff., Ex. 3. Following her earlier two attempts to obtain employment with the Defendant, the Plaintiff applied again, in September of 1997, and in May of 1999, when the Defendant respectively posted openings for a Clerk position in its Treasurer's Office, and for a License Clerk position in the County Auditor's Office. Id., Ex. 9., Johnson Aff., Ex. 3. Once again, she was unsuccessful in obtaining employment in either position.
On October 13, 1998, the Plaintiff filed this lawsuit, in which she claims that the Defendant discriminated against her, by failing to accommodate her disability, as required by the Americans with Disabilities Act, Title 42 U.S.C. § 12101, et seq. ("ADA"), and by Minnesota Statutes Section 176.82, Subdivision 2.
III. Discussion
Summary Judgment is not an acceptable means of resolving triable issues, nor is it a disfavored procedural shortcut when there are no issues which require the unique proficiencies of a Jury in weighing the evidence, and in rendering credibility determinations. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary Judgment is appropriate when we have viewed the facts, and the inferences drawn from those facts, in a light most favorable to the nonmoving party, and we have found no triable issue. Hunt v. Cromartie, 526 U.S. 541, 548 (1999); Carter v. St. Louis Univ., 167 F.3d 398, 400 (8th Cir. 1999); Prudential Ins. Co. v. National Park Med. Center, Inc., 154 F.3d 812, 818 (8th Cir. 1998). For these purposes, a disputed fact is "material" if it must inevitably be resolved and the resolution will determine the outcome of the case, while a dispute is "genuine" if the evidence is such that a reasonable Jury could return a Verdict for the nonmoving party. See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Liebe v. Norton, 157 F.3d 574, 578 (8th Cir. 1998); Dodd v. Runyon, 114 F.3d 726, 729 (8th Cir. 1997)
As Rule 56(e) makes clear, once the moving party files a properly supported Motion, the burden shifts to the nonmoving party to demonstrate the existence of a genuine dispute. In sustaining that burden, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in * * * Rule [56], must set forth specific facts showing that there is a genuine issue for trial." Rule 56(e), Federal Rules of Civil Procedure; Lambert v. City of Dumas, 187 F.3d 931, 934 (8th Cir. 1999); see, Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1029 (8th Cir. 2000) ("[O]pponent must do more than simply show that there is some metaphysical doubt as to the material facts.").
Moreover, the movant is entitled to Summary Judgment when the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), quoting, Celotex Corp. v. Catrett, supra at 322; see also, Greer v. Schoop, 141 F.3d 824, 826 (8th Cir. 1998); Mayard v. Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997). No genuine issue of fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, supra at 323; see also, Brower v. Runyon, 178 F.3d 1002 (8th Cir. 1999); Bell Lumber and Pole Co. v. United States Fire Ins. Co., 60 F.3d 437, 441 (8th Cir. 1995); McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995); Settle v. Ross, 992 F.3d 162, 163 (8th Cir. 1993).
A. The Plaintiff's Claims under the ADA.
1. Standard of Review under the ADA.
The ADA prohibits employers from discriminating "against a qualified individual with a disability because of the disability of such individual." Title 42 U.S.C. § 12112(a) . The ADA defines "qualified individual with a disability" in the following terms:
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
Title 42 U.S.C. § 12111 (8).
Our Court of Appeals has articulated a two-part test for determining whether a person is "qualified," within the meaning of the ADA. First, the Court must determine "whether the individual meets the necessary prerequisites for the job, such as education, experience, training, and the like," and second, the Court will ascertain "whether the individual can perform the essential job functions, with or without reasonable accommodation." Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995).
Since the Plaintiff has not identified any direct evidence of discrimination, her ADA claim is analyzed under the burden-shifting framework set forth in McDonnell Douglas and its progeny. See,McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Allen v. Interior Constr. Services, Ltd., 214 F.3d 978, 981 (8th Cir. 2000) (applying McDonnell Douglas analysis to claims that do not put forth any direct evidence of discrimination), citing Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1021 (8th Cir. 1998). Accordingly, to establish a prima facie case of discrimination under the ADA, an aggrieved employee must show that he or she (1) is disabled within the meaning of the ADA, (2) is qualified (with or without reasonable accommodation) to perform the essential functions of the job at issue, and (3) has suffered an adverse employment decision because of the disability. Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1017 (8th Cir. 2000), citing Treanor v. MCI Telecommunications Corp., 200 F.3d 570, 574 (8th Cir. 2000); Gutridge v. Clure, 153 F.3d 898, 900 (8th Cir. 1998); see also, Braziel v. Loram Maintenance of Way, Inc., 943 F. Supp. 1083, 1096 (D. Minn. 1996), citing, Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir. 1996).
A Plaintiff may prove a disability by showing that she either (1) has a disability as defined under the ADA; (2) suffers from a history of such a disability; or (3) is perceived by her employer as having such a disability. Title 42 U.S.C. § 12102(2)(A)-(C); Gutridge v. Clure, supra at 900; Snow v. Ridgeview Medical Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997). A "disability" is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." Title 42 U.S.C. § 12102 (2). While working does constitute a major life activity, finding that a Plaintiff is substantially limited in her ability to work requires a showing that her overall employment opportunities are limited. See, Aucutt v. Six Flags Over MidAmerica, Inc., 85 F.3d 1311, 1319 (8th Cir. 1996).
"The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2 (j)(3)(I) (1997); Snow v. Ridgeview Medical Ctr., supra at 1206. Rather, the impairment must prevent the Plaintiff from performing an entire class or broad range of jobs, as compared to the average person who possesses comparable training, skills, and abilities. See, Aucutt v. Six Flags-Over Mid-America, Inc., supra at 1319, citing 29 C.F.R. § 1630.2 (j)(3)(I). Finally, the following factors are considered in determining whether a person is substantially limited in a major life activity: (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its long-term impact. Id.
1. Legal Analysis.
a. A Qualified Individual Under the ADA. "To conclude that a person is a qualified individual within the meaning of the ADA, the court must consider whether the person has `the requisite skill, experience, education and other job-related requirements of the employment position that such individual holds or desires.'" Treanor v. MCI Telecommunications Corp., supra at 575-76, quoting Weber v. Strippit, Inc., 186 F.3d 907, 916 (8th Cir. 2000) (internal quotations omitted), cert. denied, ___ U.S. ___, 120 S.Ct. 794 (2000); see also Day v. Johnson, 119 F.3d 650, 656 (8th Cir. 1997) (noting, in a Title VII context, that the Court "must ask whether the job applicant was qualified for a particular available position"), cert. denied, 522 U.S. 1055 (1998). In this case, the Plaintiff concedes that she was unable to perform the essential functions of her job as a detention officer. Instead, the only reasonable accommodation, that would have allowed the Plaintiff to continue working for the Defendant, if any would, was reassignment to another position. See, Cravens v. Blue Cross and Shield of Kansas City, supra at 1017. Thus, the Plaintiff focuses her opposition to the Defendant's Motion on the issue of the Defendant's obligation to reassign her to other available work.
(I) An Employer's Duty to Reassign. The Defendant, and the Plaintiff, take very different positions on the obligation of an employer to reassign an employee to an another position, when she is unable to perform the essential functions of her previous job position. In the Defendant's view, the employer's obligation to reassign an employee exists only if the employee is able to perform the essential functions of her existing position, with or without accommodation. According to the Defendant, the ADA's reference to an employer's responsibility to accommodate an employee, in a position that she "holds or desires," distinguishes between existing employees, and new job applicants. Under this approach, the "holds" prong of the ADA's accommodation requirement refers to existing employees, while the "desires" prong refers to persons who are seeking to be hired by an employer.
The Defendant bases this contention, in part, upon its reading of an EEOC Guideline, in which the Commission interpreted an employer's duty to reassign an employee, under the ADA, as follows:
[R]eassignment should be considered only when accommodation within the individual's current position would pose an undue hardship.
29 C.F.R. pt. 1630, App., at 353.
The Defendant argues that, because reassignment is only required when there is first a determination that accommodating the employee in her current position would be successful, thus implying that the employee must be able to perform some aspect of her current job duties, but that permitting her to do so would pose an undue hardship.
For reasons we express elsewhere, we think that the Defendant's reading of the EEOC Guidance, as suggesting that, where an employee is unable to perform any of her past duties, the employer's duty to accommodate ends, is unduly narrow. We read the Guidance to state that the employer's duty to reassign does not arise until such time as an accommodation, in the employee's prior position, would pose an undue hardship, inclusive of the employee's inability to perform her prior work notwithstanding reasonable accommodation. As we read the Guidance, where an employee is utterly unable to perform her past duties, an employer must still consider her for reassignment, provided that suitable work is available, and the employee is qualified for that work, with or without accommodation. See, Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1019 (8th Cir. 2000). Under this reading then, an "undue hardship" includes accommodating an employee, within her current position, who cannot perform the essential functions of that position, with or without reasonable accommodation.
In rebuttal, the Plaintiff asserts that both prongs of the "holds or desires" provision of the ADA must be given effect, irrespective of one's, employment status. Under the Plaintiff's interpretation of the ADA, one who holds a job with an employer is not precluded from being considered for reassignment to a job that she desires, provided that continuing in her current job would pose an undue hardship on her employer. Our reading of the rule, as followed by our Court of Appeals, and the majority of the other Courts of Appeal, persuades us that the Defendant's position, on this question, is legally untenable, and must be rejected in favor of the Plaintiff's reading.
The ADA defines "reasonable accommodation" to include:
[J]ob restructuring, part-time or modified work schedule, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
Title 42 U.S.C. § 12111(9) ; see also, EEOC,
Enforcement Guidance; Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Thompson Aff., Ex. P, at 19 (interpreting an employer's duty to encompass reassignment when an employee can no longer perform the essential function of her current position).
"Nearly every Circuit addressing the issue has adopted this interpretation of `qualified individual with a disability.'"Smith v. Midland Brake, Inc., 180 F.3d 1154, 1162-63 (10th Cir. 1999), citing, Feliciano v. Rhode Island, 160 F.3d 780, 785-86 (1st Cir. 1998); Stone v. City of Mount Vernon, 118 F.3d 92, 100 (2nd Cir. 1997), cert. denied, 522 U.S. 1112 (1998); Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 578, 580 (3rd Cir. 1998); Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); Dalton v. Subaru-Isuzu Automotive, Inc., supra at 677; Gile v. United Airlines, Inc., supra at 498; Benson v. Northwest Airlines, Inc., supra at 1112, 1114; Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1046-47 (9th Cir. 1999); Barnett v. United States Air, Inc., 157 F.3d 744, 749-50 (9th Cir. 1998); Aldrich v. Boeing Co., 146 F.3d 1265, 1271 (10th Cir. 1998), cert. denied, 526 U.S. 1144 (1999); White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir. 1995); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1301 (D.C. Cir. 1998) (en banc); but see, Myers v. Hose, 50 F.3d 278, 284 (4th Cir. 1995) ("[T]he duty of reasonable accommodation does not encompass a responsibility to provide a disabled employee with alternative employment when the employee is unable to meet the demands of his present position.").
The Tenth Circuit, in Davoll v. Webb, 194 F.3d 1116, 1131 (10th Cir. 1999), when considered the question before us, held as follows:
"[R]eassignment of an employee to a vacant position in a company is one of the range of reasonable accommodations which must be considered and, if appropriate, offered if the employee is unable to perform his or her existing job." [
Smith v. Midland Brake, Inc.,
180 F.3d 1154, 1167 (10th Cir. 1999) (en banc)]. [In
Smith w]e recognized, that reassignment may not always be an appropriate form of reasonable accommodation. For example, if possible the employer should reasonably accommodate the employee within his or her existing job instead of reassigning him or her. See id. at 1170-71. If such accommodation is impossible, the employer need only reassign the employee to an existing vacant position for which the employee is qualified. See id. at 1170. Moreover, an employer need not reassign an employee to a position which would be a promotion or would constitute an undue burden on the employer. See id.
Similarly, the Seventh Circuit has held that the ADA requires reassignment to a vacant position where the employee is no longer able to perform the essential functions of her employment, and is qualified for the vacant position. Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996).
Most recently, our Court of Appeals has taken its own position on the question of an employer's duty to reassign an employee, who is unable to perform the essential functions of her existing job, to another available position within its employ. See, Cravens v. Blue Cross and Shield of Kansas City, supra at 1017. There, the Court affirmed the right of an employee to be considered for an alternative position, notwithstanding her inability to perform any of the essential functions of her original position, with or without accommodation. Id. In so doing, the Court rejected the employer's argument, that the plaintiff "does not fall within the scope of [the] statutory definition [of a `qualified person'] because she cannot perform, with or without reasonable accommodation, the essential functions of the job she `holds' * * *." Id. Nor did the Court accept the employer's contention, "that the phrase `or desires' * * * seeks to prevent discrimination in hiring and advancement and thus applies only to job applicants, not to individuals seeking reassignment." Id.
Instead, the Court of Appeals concluded:
Although a "qualified individual with a disability" must be someone who can perform the essential functions of a job, the terms of § 12111(8) do not limit the "qualified individual" inquiry to the individual's existing job. Instead, the scope of the statute plainly includes a disabled individual who can perform a company job that said individual "desires." Id. Thus, on its face, § 12111(8) appears to include current employees with a disability who seek or desire transfer to another position within the company.
This understanding is reinforced when we consider § 12111(8) in the context of § 12111(9), which lists "reassignment to a vacant position" as a reasonable accommodation. By its very construction, the term "reassignment" implies that the disabled individual already holds an existing assignment and must therefore be a current employee, rather than a job applicant.
Id.
The Court went on to note that, if the defendant's restrictive reading were adopted, "the only employees eligible for reassignment would be those otherwise qualified for their existing positions and with no apparent need for reassignment." Id. Thus, the Court determined that, "`[w]ith' this background in mind, it is the more natural reading of `o[r] desires' to apply the phrase more broadly than just to job applicants." Id., quoting, Smith v. Midland Brake, Inc., supra at 1164; accord, Aka v. Washington Hosp. Ctr., supra at 1301 ("An employee seeking reassignment to a vacant position is thus within the definition [of `qualified individual with a disability'] if, with or without reasonable accommodation, she can perform the essential functions of the employment position to which she seeks reassignment.").
Of course, it is the Plaintiff who "bears the burden of showing that a vacant position exists and that the plaintiff is qualified for that position." Pond v. Michelin North America, Inc., 183 F.3d 592, 595 (7th Cir. 1999). The Court of Appeals for the Fifth Circuit has observed that, "[b]efore" liability will be imposed on the [employer] for failing to accommodate [an employee] through reassignment, * * * [the employee] must first satisfy his burden of proving that he is qualified, with or without reasonable accommodation, for the [reassigned position]. Gonzales v. City of New Braunfels, Tex, ex rel. New Braunfels Police Dep't, 176 F.3d 834, 838-39 (5th Cir. 1999), citing 29 C.F.R. Pt. 1630 App. § 1630.2(o) (1998).
On this question, the Court of Appeals for the Seventh Circuit found an employee "qualified" for a potential new position, when she: (1) satisfies the legitimate prerequisites for that alternative position; and (2) is able to perform the essential functions of that position with or without reasonable accommodation. Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 678 (7th Cir. 1998). To satisfy this two-step test:
"First, the individual must satisfy `the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.'" [DeLuca v. Winer Indus., Inc.,
53 F.3d 793, 797 n. 3 (7th Cir. 1995)]. Second, the individual must be able to `perform the essential functions of the position held or desired, with or without reasonable accommodation.' Id. "Whether the plaintiff meets the `qualified individual with a disability' definition is determined as of the time of the employment decision."
Weiler v. Household Fin. Corp.,
101 F.3d 519, 524 (7th Cir. 1996); see also,
Reed v. Heil Co., 206 F.3d 1055, 1062 (11th Cir. 2000);
Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1110-11 (10th Cir. 1999). However, the ADA does not require an employer to reassign an employee with a disability to a position if such a reassignment would violate another employee's rights under a collective bargaining agreement.
Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995);
Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999);
Title 42 U.S.C. § 12111 (9)(B); see,
Lujan v. Pacific Maritime Ass'n,
165 F.3d 738, 742 (9th Cir. 1999), citing,
Aldrich v. Boeing Co.,
146 F.3d 1265, 1271 n. 5 (10th Cir. 1998);
Kralik v. Durbin, 130 F.3d 76, 81-83 (3rd Cir. 1997);
Foreman v. Babcock Wilcox Co.,
117 F.3d 800, 810 (5th Cir. 1997);
Eckles v. Consolidated Rail Corp.,
94 F.3d 1041, 1047-51 (7th Cir. 1996);
Milton v. Scrivner, Inc.,
53 F.3d 1118, 1124-25 (10th Cir. 1995); see also,
Aka v. Washington Hosp. Ctr.,
156 F.3d 1284, 1301-03 n. 25 (D.C. Cir. 1998) (en banc) (leaving the question open).
In sum, both in this Circuit, and in the majority of the Circuits which have considered the question, an employer must consider an employee who is unable to perform any of the essential functions of her job, for reassignment to another job that is vacant, and for which the employee can show that she is qualified. Cravens v. Blue Cross and Shield of Kansas City, supra at 1019. Accordingly, we reject the Defendant's contentions to the contrary.
(ii). The Timing and Scope of the Duty to Reassign.
Next, we must determine if, under the circumstances of the Plaintiff's case, reassignment to another position was possible, and for how long a period of time the duty to reassign continues. The Plaintiff argues that, under the rubric of the undue hardship doctrine, the Defendant's obligation to reassign her continued from November 18, 1995 — the date she took medical leave from the Defendant — until 1999, for, extending the duty for that long a period would not impose an undue hardship upon the Defendant. The Defendant counters that the duty to reassign is limited to a short duration, and that, in any event, the Plaintiff's medical condition precluded her from performing the essential functions of any job in its employ, until June 26, 1997. By that date, the Defendant argues, its duty to reassign had expired. We conclude, after a thorough exploration of the pertinent authorities, that an employer's duty to reassign is a limited one and, under the circumstances here, does not encompass the Plaintiff's claimed right to be reassigned by the Defendant.
1.) Timing. "The ADA requires an employer to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability." Miller v. National Cas. Co., 61 F.3d 627, 629 (8th Cir. 1995), citing Title 42 U.S.C. § 12112 (Supp. V 1993); 29 C.F.R. § 1630.9 (1994). Thus, an employer's "duty to accommodate arises only when it knows of a disability, and its duty is therefore prospective from the time when it gained knowledge of the disability." Office of Senate Sergeant at Arms v. Office of Senate Fair Employment Practices, 95 F.3d 1102, 1107 (Fed. Cir. 1996) ("Before an employer must make accommodation for the physical or mental limitation of an employee, the employer must have knowledge that such a limitation exists."). Neither the Plaintiff, nor the Defendant, dispute that the Defendant' s duty to accommodate the Plaintiff's medical condition arose on or about November 18, 1995 — the date on which the Plaintiff's physician excused her from work. Plaintiff's Memorandum, at 1; Defendant's Memorandum, at 2, Lundin Aff. ¶ 3.
As previously addressed, an employee who is unable to perform her current job functions is entitled to reassignment, provided that she is qualified for the new position, and the position is vacant. Cravens v. Blue Cross and Blue Shield of Kansas City, supra at *6. "The term `vacant position' not only includes positions that are presently vacant, but also those that the employer reasonably anticipates `will become vacant in a short period of time.'" Id. n. 5 (emphasis added), quoting Monette v. Electronic Data Sys. Corp., supra at 1187. Likewise, according to the EEOC Guidelines, an employer who utilizes reassignment, in order to satisfy its duty to provide reasonable accommodation to a current employee, "should reassign the individual to an equivalent position in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time." EEOC Interpretive Guidance on Title I of the Americans with Disabilities Act ("EEOC Guidance"), 29 C.F.R. § 1630.2 (o) (App.). The Guidelines go on to state that a reasonable amount of time should be determined "in light of the totality of the circumstances." Id.
The interpretation of legislation by the enforcing agency is entitled to "great deference." Allen v. Entergy Corp., 181 F.3d 902, 905 (8th Cir. 1999); see also, Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998), citing, EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 115 (1988); Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n. 4 (3rd Cir. 1998); Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 150 n. 3 (2nd Cir. 1998); Olson v. Dubuque Community Sch. Dist., 137 F.3d 609, 612 (8th Cir. 1998); Kralman v. Illinois Dep't of Veterans' Affairs, 23 F.3d 150, 155 (7th Cir. 1994), cert. denied, 513 U.S. (1994); Hale v. Marsh, 808 F.2d 616, 620 (7th Cir. 1986). In looking to the EEOC's interpretive guidance, we remain mindful of the Supreme Court's following instruction as to its persuasive weight: "As an `administrative interpretation of the Act by the enforcing agency,' these Guidelines, `while not controlling upon courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort to guidance.'" Mentor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986), quoting General Elec. Co. v. Gilbert, 429 U.S. 125, 141-42 (1976), and Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971).
In its Interpretive Guidance, the EEOC posits the following, hypothetical response to the question of how long the duty to reassign exists:
An employer is seeking a reassignment of an employee with a disability. There are no vacant positions today, but the employer has just learned that another employee resigned and that position will become vacant in four weeks. The impending vacancy is equivalent to the position currently held by the employee with a disability. If the employee is qualified for that position, the employer must offer it to him.
EEOC Guidance, at 20.
By comparison, the EEOC has rejected the notion that an employer must — all other things being equal — reassign an employee to a position that will not become available for a period of six months. Id. In so concluding, the EEOC held that "six months" is beyond a "Reasonable amount of time." Id. Referencing a situation closely analogous to the facts of this case, the EEOC noted that, "[i]f, six months from now, the employer decides to advertise the position, it must allow the individual to apply for that position and give the application the consideration it deserves." Id.
As noted, in April of 1996, the Defendant received a recommendation from Dahl — the Plaintiff's occupational therapist, that she participate in a work hardening program prior to being considered for a return to work. Lundin Aff. ¶ 5. At or about the same time, Dr. Turner, relying upon a Functional Capacities Evaluation ("FCE") that was conducted in April of 1997, "released the Plaintiff to work four to five hours per day," but "due to difficulties that the Plaintiff experienced in May of 1997, Dr. Turner restricted her to work for no more than two hours per day." Plaintiff's Memorandum, at 4. By the Plaintiff's own account, she was not able to perform full-time work, again, until June 26, 1997, as reflected by the FCE performed by Pamela Snyder, who was then the Plaintiff's physical therapist. Id. at 17 ("Plaintiff's contention in this case is that she was capable of working as of June 26, 1997."); Lundin Aff. ¶ 5; Hannig Aff., Ex. C.
Moreover, in the course of her deposition, which was taken on April 29, 1997, the Plaintiff acknowledged that she was unable to perform a monitoring position, with the Defendant, given its requirement that she be able to "twist [her] wrist because there are knobs to be turned for opening doors and controlling the elevator and running the monitors and answering the telephone and writing in your logs and everything all at one time." Johnson Deposition at 124-25, Thompson Aff., Ex. A. This same recognition of her physical limitations caused the Plaintiff to express doubt that she could function as a dispatcher at anytime after November 18, 1995, and before the date of her deposition. Id.
In addition, the Plaintiff sought Social Security Disability Benefits ("DIB") on January 13, 1997. Social Security Decision, at 1, Thompson Aff., Ex. K. As a part of her DIB application, the Plaintiff represented that she was unable to perform any substantial gainful employment from October 1, 1995, through June 26, 1997. In appealing the initial denial of DIB, the Plaintiff submitted a letter of April 20, 1997, to the Social Security Appeals Council, in which she stated that, "at this time," performing even sedentary, clerical functions is "almost an impossibility." Thompson Aff., Ex. L. After a Hearing before an Administrative Law Judge ("ALJ"), the Plaintiff's was granted DIB, as the ALJ found that the Plaintiff had been totally disabled from October 1, 1995, until June 26, 1997. Id., Ex. N.
In Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 (1999), the Supreme Court articulated the standard for assessing assertions of total disability, made by a plaintiff, outside the confines of her ADA suit, on a pending ADA claim. The Court held as follows:
When faced with a plaintiff's previous sworn statement asserting "total disability" or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim. To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good faith belief in, the earlier statement, the plaintiff could nonetheless "perform the essential functions" of her job,
with or without "reasonable accommodation." Id.; Moore v. Payless Shoe Source, Inc., 187 F.3d 845, 847 (8th Cir. 1999), cert. denied, 120 U.S. 589 (1999).
The Plaintiff does not quarrel with her representations before the Social Security Administration. She simply notes that her pursuit of DIB was necessary, because her "long term disability plan would have reduced her benefits as if she were receiving SSDI benefits." Plaintiff's Memorandum, at 8. Thus, under the framework enunciated in Cleveland, we take the Plaintiff's representations to the Social Security Administration to corroborate her other testimony that, prior to June 26, 1997, whe was unable to perform the essential requirements of any job.
The Plaintiff's FCE of June 26, 1997, reflects that she then "demonstrated the functional ability to work in sedentary to light levels on a full time basis," with the need to change positions, from sit, to stand, to walk, in 30 minute intervals.Id. at 6. The Plaintiff attributes her newly found ability to perform full-time work to her response to a new medication — Guaifenesin — which was prescribed by Dr. Turner, and which "improved her ability to function physically." Plaintiff's Memorandum, at 4.
Guaifenesin is an expectorant, which promotes the secretion, or expulsion, of phlegm, mucus, or other matter from the respiratory tract. Dorland's Illustrated Medical Dictionary, p. 721 (28th Ed. 1994)
The Plaintiff's physical limitations did not preclude her from performing all forms of work, between November of 1995, and June of 1997, for, on April 17, 1997, the Plaintiff began a job with the USASA, doing clerical work. Id. The Plaintiff described the work as alphabetizing papers, putting papers in order, and entering computer data. Johnson Depo., p. 113, lns. 9-12. The Plaintiff reported that she was only able to work between one and two hours per day in that position. Id., lns. 19-20. Beyond that, she would experience back pain which, in turn, would cause her to become nauseated, such that she would have to cease working. Id., p. 113, ln. 23 to p. 114, ln. 4. We do not consider, nor does the Plaintiff urge, that her work for the USASA reflects her ability to return to work for the Defendant, even on a part-time basis. The Plaintiff has not shown, as it is her burden to do, that there were open positions, with the Defendant, that would have accommodated her inability to work for over one to two hours per day, without reallocating or eliminating the essential functions of any such position.
In so stating, we are aware of the fact that "[w]hile job restructuring is a possible accommodation under the ADA, this [Circuit] has held that an employer need not reallocate or eliminate the essential functions of a job to accommodate a disabled employee." Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 950 (8th Cir. 1999). An employer "is not obligated to hire additional employees or reassign existing workers to assist [an employee] in her essential duties." Id citing Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998) . "Neither is [an employer] required to create a new position or to create a permanent position out of a temporary one as an accommodation." Id., citing Benson v. Northwest Airlines, Inc., supra at 1114. "`The employee still carries the burden of showing that a particular accommodation rejected by the employer would have made the employee qualified to perform the essential functions of the job.'" Lloyd v. Hardin County, Iowa, 207 F.3d 1080, 1084 (8th Cir. 2000), quoting Fjellestad v. Pizza Hut of America, Inc., supra at 954
The Plaintiff does contend that, although she was unable to perform any part-time or full-time work for the Defendant, at any time between the onset of her disability and June 26, 1997, the Defendant's duty to accommodate her disability continued, because she and the Defendant maintained an employee-employer relationship. The Defendant has flatly denied this contention, by placing before us the payroll, and other personnel records, that report that she was terminated from the Defendant's employ as of March 28, 1997. By sworn Affidavit, the Defendant avers that the Plaintiff's employment was terminated, as required by the Family Medical Leave Act, after her medical leave, which expired on March 28, 1997. Lundin Supplemental Aff. ¶¶ 3-5. Lundin has averred — and it is an averment that has gone unchallenged by the Plaintiff — that the Plaintiff was unable to perform the essential functions of her prior position, as a detention officer, at the time that her period of medical leave expired. Thus, consistent with the provisions of the FMLA, Lundin completed a "Payroll Change Notice" which terminated the Plaintiff's employment as of March 28, 1997. Id., Ex. A. The Defendant contends, therefore, that any duty it otherwise owed to the Plaintiff ceased upon her employment termination, since she has failed to demonstrate that she was able to perform any work, at any time after November 18, 1995, and before that termination. See, Treanor v. MCI Telecommunications Corp., supra at 576 ("The ADA does not prevent an employer from terminating a disabled person who is not qualified to perform the essential functions of a particular and available job.").
The Plaintiff requested, and was granted, medical leave on January 1, 1997. Lundin Aff. ¶ 3. As explained in Reynolds v. Phillips Temro Industries, Inc., 195 F.3d 411, 413-14 (8th Cir. 1999)
The FMLA entitles eligible employees to take leave from work when they must be absent from work for medical reasons.
29 U.S.C. § 2612(a)(1). The FMLA allows an eligible employee to take up to twelve weeks of leave during any twelve-month period for certain family or medical reasons including "a serious health condition that makes the employee unable to perform the functions of the position of such employee."
29 U.S.C. § 2612(a)(1)(D). The FMLA further provides that, upon return from FMLA leave, an employee shall be restored to the position of employment he held when the leave began or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment.
29 U.S.C. § 2614(a). FMLA regulations provide that "[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA)."
29 C.F.R. § 825.214(b).
The Plaintiff disputes that her termination could have been accomplished as described by the Defendant and, additionally, she points to a number of documents that, in her view, intimate that the Defendant considered her to be an employee well after March 28, 1997. First, the Plaintiff argues that she could not have been terminated, under the terms of her collective bargaining agreement ("CBA"), without written notice to her which, she avers, without contradiction by the Defendant, she never received. Johnson Aff. ¶ VII. In support of her claim, that her termination could only have been accomplished by the Defendant's employment of written notice, the Plaintiff directs the Court's attention to Article X,
Notwithstanding the Plaintiff's contention, we note that the CBA, which has been submitted by the Defendant, and has been referred to, and relied upon, by the Plaintiff, was not in effect at the time of the Plaintiff's termination. Article XXIX of the CBA, which is entitled "Duration," provides that the CBA "shall be effective as of January 1, 1994 and shall remain in full force and effect until December 31, 1996." Lundin Aff., Ex. 6. The Defendant contends that the Plaintiff was terminated on March 28, 1997, and the Plaintiff counters, that her termination occurred after that time, if ever. Clearly then, the provisions of the proffered CBA do not control the employment relationship of the parties as pertinent to this dispute. Absent the then-in-force CBA — if one existed — the Plaintiff has failed to demonstrate, in the face of the Defendant's proffer of her payroll records, which do reflect that she was terminated on March 28, 1997, a genuine factual issue as to her right to a written termination notice. See, Rule 56(e), Federal Rules of Civil Procedure ("[T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). For this reason, and because the CBA relied upon by the Plaintiff does not establish a right to written notice under the circumstances of her termination, we reject the Plaintiff's argument that the Defendant could not have effected the Plaintiff's termination by the issuance of a Payroll Change Notice. Nonetheless, our analysis continues as if the CBA, which is presently before us, were in full force and effect.
Next, the Plaintiff argues that the ongoing, interactive job placement process, in which she was engaged with the Defendant, confirms that the Defendant considered her to be an employee well after March 28, 1997. She points, for instance, to a "COBRA QB Data Form," which was completed by Kathy Domholt ("Domholt") — whom the Plaintiff identifies as an agent of the Defendant — which reports that the qualifying event, for the action that was taken, was a "reduction in hours," and not a job termination. COBRA QB Data Form, Thompson Aff., Ex. R. Of course, the Defendant does not contend that the Plaintiff's job was terminated on March 17, 1997, and, therefore, the fact that Domholt did not record, on the COBRA form, that she was so terminated, is completely consistent with the Defendant's position. Accordingly, the COBRA form provides no support for the Plaintiff's assertion, that the Defendant considered her an employee after March 28, 1997.
The Plaintiff also suggests that certain communications, between her job placement representative, and the Defendant, show that she remained an employee of the Defendant after her purported termination. The Plaintiff cites a letter, that was written on November 24, 1997, from Larry Krohn ("Krohn"), who is the Otter Tail County Coordinator, to Lowell Lynch ("Lynch"), who is a representative of the Plaintiff's Union. In that letter, Krohn wrote as follows:
I have reviewed the issues raised by Kathy Johnson and wish to provide you with the following information. Kathy's first day of lost time, for Workers Compensation purposes, was November 18, 1995. Kathy was not terminated by the County action, however, as a result of her medical condition and physician's opinions, her employment ceased.
Affidavit of Kathy Johnson, Ex. 4.
Inexplicably, the Plaintiff proffers this correspondence as proof that she was not terminated on March 28, 1997. The letter does not, however, lend itself to the meaning ascribed by the Plaintiff. The Defendant agrees, that the Plaintiff was not terminated on November 18, 1995, but that, much later, because of her medical condition, her employment ceased. While Krohn did not again employ the label "termination," his letter does plainly reflect that the Plaintiff's medical condition made it impossible for her to return to active employment with the Defendant, thus ending that employment. Under any plausible reading, Krohn's letter cannot be responsibly used to overcome the plain import of the Payroll Change Notice, which recorded that the Plaintiff was terminated on March 28, 1997.
Nor can the fact, that the Defendant provided disability case management to the Plaintiff, after her injury, form a basis to controvert the claimed date of termination, that the Defendant has offered. Notably, the Plaintiff acknowledges that her case management was provided only "until March 1997," which is the month in which the Defendant contends the Plaintiff was terminated. See, Plaintiff's Memorandum, at 3. The timing of the Defendant's case management service buttresses, rather than undermines, the Defendant's position. Similarly, we are not persuaded that, as the Plaintiff urges, the fact that the Plaintiff's Rehabilitation Plan was signed by Wendy Zalazar ("Zalazar"), who is also an employee of the Defendant, supports the Plaintiff's effort to discredit the Defendant's date for her employment termination. The Rehabilitation Plan, which is offered by the Plaintiff to raise a genuine factual issue as to the date of her termination, was signed by Zalazar on March 24, 1997, which is prior to March 28, 1997 — the date of termination proffered by the Defendant. Hannig Aff., Ex. A. Neither, Zalazar's signature on the Rehabilitation Plan, nor any action on the part of the Defendant to aid the Plaintiff's re-employment prior to March 28, 1997, can serve as evidence to properly contradict the Defendant's showing, that the Plaintiff was terminated on that date, since those efforts are supportive of the accuracy of the Defendant's termination date.
The Plaintiff's reference to the interaction between Krohn and Lundin, and the Plaintiff's Job Placement Specialist, Steve Kocher ("Kocher"), fares no better in eroding the probative weight of the Defendant's proffered termination date. The Plaintiff cites to a variety of communications between Krohn, Lundin, and Kocher, which, in one instance, reflects that Kocher met with Krohn, on May 13, 1997. Kocher's notes from that meeting report that he and Krohn discussed the Plaintiff's "status with the county and the probability of [the Plaintiff] returning to the county in another position that is within her restrictions."Hannig Aff., Ex. B. Kocher noted that "Krohn reports that he is not opposed to this idea and will give it some further thought," and that "Mr. Krohn felt that if they had an opening that could be filled from within, it would be easier to qualify [the Plaintiff], and thus hire her." Id. From Krohn's statement, the Plaintiff asks that we infer that he considered the Plaintiff to be an employee of the Defendant, even after the date that the Defendant has offered as her termination date. His comment, she contends, could be read as suggesting that, at that time, he believed that the Plaintiff would be eligible for a position that could be "filled from within," or by a current County employee.
The Plaintiff also offers Kocher's report of his meeting with Krohn, and Lundin, on July 17, 1997, in support of her suggestion that, notwithstanding the Defendant's direct evidence of her termination date, her employment continued thereafter. After the noted meeting with Krohn and Lundin, Kocher wrote that "Karen reports the OTC [i.e., "Otter Tail County"] has not closed the door on [the Plaintiff] and [will] consider her for all new jobs that open up within OTC." Id. The Plaintiff reads much into the fact that, as Kocher reports it, neither Krohn, nor Lundin, advised him that she had been terminated at the time of their conversations.
Neither the inference, which the Plaintiff would have us draw from Krohn's statement, nor that which she suggests as to Lundin's statement, overcomes the Defendant's direct proof, that the Plaintiff was terminated from its employ, on March 28, 1997. We are mindful that, because "employment discrimination cases frequently turn on inferences rather than direct evidence, the court must be particularly deferential to the party opposing summary judgment." Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999). "This deference does not, however, obviate the nonmoving party's burden to establish a factual dispute on every essential element of her case, and a failure to do so will still result in Summary Judgment." Hayes v. Blue Cross Blue Shield of Minnesota, Inc., 21 F. Supp.2d 960, 969 (D. Minn. 1998), citing Snow v. Ridgeview Medical Center, 128 F.3d 1201, 1205 (8th Cir. 1997); Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 762 (8th Cir. 1995).
Here, the question of the Plaintiff's termination date does not turn on a reasonable inference, for the Defendant has offered direct evidence on that issue, which has gone unrebutted. Although the Plaintiff would have us tortuously construe casual comments which, at best, are hearsay, we are not obligated to read the evidence so indulgently in the Plaintiff's favor as to create facts where none exist. We would expert responsible employers to extend job opportunities to former employees who have fallen on difficult times, but we are aware of no authority, and the Plaintiff has offered none, that the law, either under the ADA, or elsewhere, categorically imposes that obligation on a past employer. To read more into these comments, even if they constituted competent evidence, would result in a Record that was judicially created, a prospect we find unacceptable.
For these purposes, therefore, we are obligated to accept the Defendant's proposition, that the Plaintiff's employment was terminated on March 28, 1997, as there is no competent evidence to the contrary. Even so, the Plaintiff takes exception to the rule that termination, for non-discriminatory reasons, should be allowed to end an employer's duty to accommodate a disabled employee under the ADA. As she argues the matter, "[t]here is no hard and fast rule that termination ends an employer's responsibility to reassign a disabled employee * * *" Plaintiff's Memorandum, at 15. In the Plaintiff's view, "such a rule simply would give employers an incentive to terminate disabled employees as soon as a disability was discovered, which would certainly be contrary to the goals and intent of the ADA." Id.
A review of the ADA's provisions, however, discloses that the Plaintiff overstates the negative impact that would attend such a rule as, in fact, the rule does exist. See, Treanor v. MCI Telecommunications Corp., supra at 576. First, an employee may preempt an employer's desire to terminate her, because of her disability, simply by requesting an accommodation, which gives rise to the employer's duty to begin the interactive process so as to determine whether she can perform the essential functions of the job that she holds, or desires. See, Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 952 n. 5 (8th Cir. 1999) (employee is not required to request accommodation in writing, or to use the magic words of "reasonable accommodation," in order to trigger the employer's responsibility to engage in the interactive process of determining reasonable accommodation under ADA, as employee's notice must merely make it clear to the employer that employee wants assistance for his or her disability); Title 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. §§ l630.2(o)(3), 1630.9.
Moreover, assuming that the employer can be shown to have knowledge of the employee's disability, it will certainly expose itself to liability, under the ADA, if it undertakes a discriminatorily adverse employment act against that employee. See, Johnson v. Loram Maintenance of Way, Inc., 83 F. Supp.2d 1007, 1012 (D. Minn. 2000) (a prima facie case of discrimination, under the ADA, is made by showing that the employee: (1) was disabled within the meaning of the ADA; (2) was qualified to perform the essential functions of the job; and (3) suffered adverse employment action under circumstances giving rise to an inference of unlawful discrimination because of the disability), citing Spades v. City of Walnut Ridge, 186 F.3d 897, 899 (8th Cir. 1999).
Here, the Plaintiff made no request for accommodation until May 27, 1997. See, Plaintiff's Memorandum, at 25, citing Kocher Letter to Krohn dated May 27, 1997, Hannig Aff., Ex. B. "`In general, it is the responsibility of the individual with the disability to inform the employer that an accommodation is needed.'" Mole v. Buckhorn Rubber Products, Inc., 165 F.3d 1212, 1217 (8th Cir. 1999), cert denied, ___ U.S. ___, 120 S.Ct. 65 (1999), quoting Wallin v. Minnesota Dep't of Corrections, 153 F.3d 681, 689 (8th Cir. 1998). By the time of the Plaintiff's request, however, she had been terminated from the Defendant's employ. Post-termination requests for accommodation are not properly viewed as requests for accommodation at all but, rather, are requests for reinstatement.Mole v. Buckhorn Rubber Products, Inc., supra at 1218. Given the untimeliness of the Plaintiff's request for accommodation, her assertion, that the Defendant's Motion should be denied, because she has raised a material issue of genuine fact, as to the Defendant's participation in an interactive process to accommodate her disability, must fail.
The Plaintiff bases her claim, that there exists a triable issue of fact as to the Defendant's participation in the interactive process, is predicated upon the Regulations which interpret the ADA, and which provide, in part, as follows:
To determine the appropriate reasonable accommodation it may be necessary for the [employer] to initiate an informal, interactive process with the [employee] with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
29 C.F.R. § 1630.2(o)(3).
The EEOC's Guidelines further provide that:
Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.
29 C.F.R. § 1630, App. § 1330.9 [emphasis added].
Our Court of Appeals has held that, "for purposes of summary judgment, the failure of an employer to engage in an interactive process to determine whether reasonable accommodations are possible is prima facie evidence that the employer may be acting in bad faith." Fjellestad v. Pizza Hut of America, Inc., supra at 952. In Fjellestad, the Court concluded that, "[i]n sum, * * * summary judgment is typically precluded when there is a genuine dispute as to whether the employer acted in good faith and engaged in the interactive process of seeking reasonable accommodation." Id. at 953. The Plaintiff's attempt to use the lack of a statutorily sufficient interactive process, so as to create a fact issue for Trial, is flawed, however, in its essential premise.
Unlike the plaintiff in Fjellestad, the Plaintiff did not request accommodation until after she was terminated. As noted, the interactive process is triggered "[o]nce a qualified individual with a disability has requested provision of a reasonable accommodation." 29 C.F.R. § 1630, App. § 1330.9. In the Plaintiff's case, that request simply came too late. To the extent that the Plaintiff can be heard to argue that the process should have been initiated by the Defendant, at some time prior to her termination, that claim is also unavailing. It is undisputed that the Plaintiff was unable to work for the Defendant, at any time prior to June of 1997. Plaintiff's Memorandum, at 17. As such, the question of whether the Defendant did interact, or should have interacted with the Plaintiff, so as to determine a reasonable accommodation, at time when she admits that her disability could not be accommodated, is not material to our resolution of the parties' legal dispute. As a consequence of her termination, the Defendant owed no accommodation to the Plaintiff.
Our analysis of the Plaintiff's ADA claim has, necessarily, been indulgent. Notwithstanding that indulgence, her contention, that the Defendant's duty to reassign her was interminable, must be rejected. Even if we were to accept, as the Plaintiff urges, that her employment was not terminated on March 28, 1997, we could not escape the conclusion that the Plaintiff's failure to request an accommodation, until May 27, 1997, was fatal to her ADA claim of an unlawful failure to accommodate. As noted, the EEOC, and a number of Courts — including this one — have concluded that the duty to reassign exists for finite period of time, and the outer limits of which the EEOC has limned at no more than six months. See, e.g., EEOC Guidance, supra at 20; Cravens v. Blue Cross and Blue Shield of Kansas City, supra at 1019 n. 5 ("The term "vacant position" not only includes positions that are presently vacant, but also those that the employer reasonably anticipates `will become vacant in a short period of time.'") [emphasis added], quoting, Monette v. Electronic Data Sys. Corp., supra at 1187; see also, Wooten v. Farmland Foods, supra at 386 (evidence that plaintiff applied, but was not chosen, for job which would have accommodated his restrictions were not material because the job only became available after plaintiff was terminated); Smith v. Midland Brake, Inc., supra at 1177 (a vacant position includes positions open at the time the request for accommodation is made, and positions the employer anticipates will become vacant in the "fairly immediate future."); Braziel v. Loram Maintenance of Way, supra at 1101 (employer is not required to continue employment of a disabled employee until position opens which is within employee's restrictions). Here, the Plaintiff's first request for accommodation came more than eighteen months after she ceased working for the Defendant, and two months after she was officially terminated. Under these circumstances, the Plaintiff has not advanced a viable case that she was denied accommodation, under the ADA. Having failed to bear her burden of proof in this respect, we grant that the Defendant's Motion for Summary Judgment, on the Plaintiff's ADA claim.
Since our ADA analysis ceases with our determination, that the Plaintiff was unable to perform any position, which was available with the Defendant, prior to March 28, 1997, we need not address the question of the extent to which an employer must reassign a disabled employee to a position for which she is minimally qualified, but as to which the employer has more qualified applicants. While the question remains largely unanswered, the Court of Appeals for the Tenth Circuit has resolved the question in favor of the employee's right to preferential consideration in the reassigned position. See,Davoll v. Webb, 194 F.3d 1116, 1131 (10th Cir. 1999) ("[T]he reassignment obligation * * * mean[s] something more than merely allowing a disabled person to compete equally with the rest of the world for a vacant position."), quoting Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc) . Our own Court of Appeals has yet to address the issue. Cravens v. Blue Cross and Blue Shield of Kansas City, supra at 1016 n. 2 ("In the instant case, we need not decide this very different question of whether an otherwise qualified disabled employee should be automatically awarded a position over other qualified applicants."), citing Smith v. Midland Brake, Inc., supra.
B. The Plaintiff's Claims Under Minnesota Statutes Section 176.82.
The Plaintiff's second avenue of recovery rests on her contention that the Defendant obstructed her receipt of workers' compensation benefits, in violation of Minnesota Statutes Section 176.82. As alleged in the Plaintiff's Complaint, the Defendant violated Section 176.82 by terminating her in retaliation for her seeking unemployment benefits, and by refusing, without reasonable cause, to offer her continued employment. Complaint ¶¶ XVI-XVII.
1. Standard of Review. Section 176.82, Subdivision 1, imposes civil liability on "[a]ny person discharging or threatening to discharge an employee for seeking workers' compensation benefits or in any manner intentionally obstructing an employee seeking workers' compensation benefits * * *." Subdivision 2 of the Statute provides, in pertinent part, as follows:
An employer who, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee's physical limitations shall be liable in a civil action for one year's wages.
To succeed under Section 176.82, a claimant must demonstrate an actual obstruction of benefits, that is, "some actual denial or disruption in the receipt of benefits must occur to warrant recovery." Summers v. R D Agency, Inc., 593 N.W.2d 241, 244 (Minn.App. 1999), quoting Flaherty v. Lindsay, 467 N.W.2d 30, 32 (Minn. 1991). Minnesota law applies the burden shifting analysis of the McDonnell Douglas test to retaliatory discharge claims under Section 176.82. Benson v. Northwest Airlines, Inc., 561 N.W.2d 530, 539 (Minn.App. 1997), rev. denied, (Minn. June 11, 1997); Kunferman v. Ford Motor Co., 112 F.3d 962, 965 (8th Cir. 1997).
Where the essential facts are undisputed, a Court may dispose of a civil claim against an employer, for obstruction of workers' compensation benefits, by means of Summary Judgment. Markgraf v. Douglas Corp., 468 N.W.2d 80, 82 (Minn.App. 1991), citingBergeson v. United States Fidelity and Guar. Co., 414 N.W.2d 724, 725-26 (Minn. 1987). "To survive a motion for summary judgment, a plaintiff claiming unlawful retaliation under Minnesota law must produce evidence sufficient to create a genuine issue of material fact as to whether her protected activity caused the retaliation." Kunferman v. Ford Motor Co., supra at 965, citingDietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995).
2. Legal Analysis. This aspect of the Plaintiff's Complaint need not long detain us. The parties agree that the evidence, which has been proffered in support of, and in opposition to, the Plaintiff's ADA claims, also forms the basis for determining the viability of her Section 176.82 claim. Here, however, "[w]hile [the Defendant] admittedly dismissed the Plaintiff in accordance with [County] policy, after [her FMLA] leave had expired, [the Plaintiff has put forth] no evidence of any intent on the part of [the Defendant] to disturb [her] receipt of benefits, and we have found none either." Boone v. Federal Exp. Corp., 59 F.3d 84, 87 (8th Cir. 1995). As did the Court in Boone, we find that the Plaintiff has provided no competent basis upon which to conclude that the Defendant has violated the provisions of Section 176.82. Id.
First, the Plaintiff has proffered absolutely no evidence to support her claim that her termination, and corresponding cessation in workers' compensation benefits, were the result of the Defendant's retaliatory intent. The Plaintiff appears to acknowledge this fact and, therefore, focuses her opposing argument exclusively upon Subdivision 2 of Section 176.82. As noted, Subdivision 2 creates liability for an employer who, "without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee's physical limitations * * *." As our analysis of the Plaintiff's ADA claims evinces, there was no employment available, which suited the Plaintiff's physical limitations, upon the expiration of her FMLA leave. Nor was it the case that, as we have previously determined, the Defendant owed the Plaintiff a continuing duty to accommodate her disability, such that it was unreasonable for the Defendant to terminate her employment when the Defendant did. The Plaintiff has failed to identify any position that was available in the Defendant's employ, that was also suitable to her medical limitations. The Plaintiff was unable to work for longer than one to two hours a day, by her own account, and by the accounts of her health care professionals, until June of 1997. By that time, her termination had been effective for approximately three months. Given these facts, the Defendant's termination of the Plaintiff was not, as a matter of law, unreasonable, and no liability under the Section 176.82 should attach.
To the extent that the Plaintiff's claims are interpreted as relating to her post-June of 1997 efforts to gain employment with the Defendant, they also must fail. First, Subdivision 2 of the Statute only applies to employees. The question of the Plaintiff's employment status, post March 28, 1997, has been resolved against her claim of continued employment. As such, she is not a person covered by the Statute, at least with respect to the Defendant. Therefore, the Plaintiff's claims, under Minnesota Statute Section 176.82, are not viable, as a matter of law, and Summary Judgment is hereby granted in the Defendant's favor as to those claims.
NOW, THEREFORE, It is —
ORDERED:
That the Defendant's Motion for Summary Judgment [Docket No. 13] is GRANTED.
.