Ballard v. Rubin

• Decision Date: 29 March 2002
• Docket Number: No. 01-2633.,01-2633.
• Citation: 284 F.3d 957
• Parties: Thomas E. BALLARD, Plaintiff/Appellant, v. Robert E. RUBIN, Secretary of the Treasury, Defendant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.3d 957

Thomas E. BALLARD, Plaintiff/Appellant, v. Robert E. RUBIN, Secretary of the Treasury, Defendant/Appellee.

No. 01-2633.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2002.

Filed: March 29, 2002.

Clifford B. Faddis, argued, St. Louis, MO, for appellant.

Nicholas P. Llewellyn, Asst. U.S. Atty., argued, St. Louis, MO, for appellee.

Before WOLLMAN,¹ Chief Judge, HANSEN, Circuit Judge, and OBERDORFER,² District Judge.

OBERDORFER, District Judge.

Thomas Ballard appeals an award of summary judgment on his claim that his former employer, the Internal Revenue Service ("IRS"), violated the Rehabilitation Act by failing to accommodate his disability. After review, we conclude that Ballard never timely requested such accommodation, expressly or de facto, and thus the IRS was never obligated to provide it. We therefore affirm the district court.

I.

Ballard was employed by the IRS from 1967 until his retirement on January 1, 1999. After 1985 until his retirement he worked as a GS-14 large-case manager. As a result of polio contracted during his childhood, Ballard wore leg braces and used crutches during the time the IRS employed him. He also suffered pain in his upper extremities. The parties agree that at all relevant times Ballard was disabled for purposes of the Rehabilitation Act.

On October 8, 1991, Ballard sent a memo to his manager withdrawing from the IRS's Management Achievement Program ("MAP program"), in which he had participated for some period of his employment. The MAP program is designed to plan different assignments for participating employees to improve their chances for promotion. Ballard's memo stated that he had been advised that his credentials would be enhanced if he accepted certain assignments involving additional travel that he did not think feasible in light of his disability. He stated, "In my view, these assignments will require additional travel. In view of my current physical limitations, I do not believe it is in my best interests to continue to pursue a higher level position. I am therefore requesting that you remove my name from the MAP program."

Ballard attached to his memo two letters from his doctor, which he described as "self explanatory." The first contained a recommendation that Ballard be allowed to use a "light weight wheelchair" to reduce his pain and enable him to be more mobile. The second letter also contained a recommendation that Ballard be allowed to use a wheelchair and further that "he curtail his traveling and/or travel with another person who can assist him when needed."

Ballard also wrote in his memo, "I am not now requesting any special considerations. I intend to continue to perform my assigned responsibilities to the best of my abilities. However, I believe it is to [sic] appropriate for me to take [my doctor's] recommendations into account if I am to have any future." He continued, "I will endeavor to continue to accomplish my current responsibilities to the best of my ability without special considerations. However, I am requesting that my PMRS objectives take my physical limitations into account before requiring me to serve on out of town task forces." There is no evidence that the IRS made any adjustments to Ballard's job requirements following its receipt of his memo and its attachments.

Following his withdrawal from the MAP program, Ballard applied but was not selected for two promotions. The first was in 1994 as a GS-15 Branch Chief in the IRS's St. Louis office. On August 26, 1994, Ballard filed an EEO complaint alleging that he was not selected for this position because of his disability. Ballard attached a copy of his 1991 memo to the complaint and indicated that he was denied participation in the MAP program because the IRS would not accommodate his disability. He stated, "I provided the attached memorandum to my manager believing that he would provide me the accommodations suggested by my doctor with regard to travel particularly due to the circumstances surrounding the need to restrict my travel.... [I] believed the IRS would offer to accommodate the travel assistance as recommended by my physician. I was evidently incorrect as I was promptly removed from the MAP program without hesitation." In 1997, Ballard was not selected for an Acting Branch Chief assignment in St. Louis. No EEO-related action appears to have followed.

On December 8, 1998, seven IRS employees, including Ballard, filed a twelve-count complaint against Robert Rubin, the Secretary of the Treasury, alleging various types of discrimination by the IRS. Ballard brought three claims: hostile work environment, disability discrimination, and failure to accommodate. The district court denied the plaintiffs' motion for partial summary judgment and granted in part and denied in part the defendant's cross-motion for summary judgment, including awarding summary judgment to the defendant on all three of Ballard's claims.

II.

"We review a grant of summary judgment de novo, affirming the decision of the district court only if no genuine issue of material fact exists, entitling the moving party to judgment as a matter of law." Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657 (8th Cir.2001) (citing Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir.1999) (en banc)). "In considering whether summary judgment was appropriate, we view all evidence in the light most favorable to the nonmoving party, drawing all justifiable inferences in his favor." Id. (citing Kiel, 169 F.3d at 1134).

III.

Ballard's sole claim on appeal is that the IRS committed unlawful employment discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq., by failing to provide reasonable accommodations for his disability. As this Court has held in the context of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.,³ "An employer commits unlawful discrimination ... if the employer does `not mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].'" Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 951 (8th Cir.1999) (quoting 42 U.S.C. § 12112(b)(5)(A)). This Court observed in Fjellestad, where the employee truly and affirmatively requested accommodation, that the scope of the employer's obligation in this regard is determined through an "`informal, interactive process'" between the employer and the employee, identifying the limitations arising from the disability and potential reasonable accommodations that could overcome those limitations. Id. (quoting 29 C.F.R. § 1630.2(o)(3)).

To show that an employer failed to participate in this interactive process, the employee must demonstrate that: "`1) the employer knew about the employee's disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith.'" Id. at 952 (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 165 (3d Cir.1999)). The mere failure of an employer to engage in the interactive process does not give rise to per se liability, although for summary judgment purposes such failure is considered prima facie evidence that the employer may be acting in bad faith. Id.

The primary issue in this case is whether Ballard "requested accommodations or assistance" for his disability, which is a "predicate requirement" for the initiation of the interactive process. Id. Ballard offers two pieces of evidence that he claims satisfy this requirement: 1) his 1991 memo, by which he withdrew from the MAP program and the attached letters from his doctor recommending that he be allowed to use a wheelchair and curtail his travel schedule, and 2) his 1994 EEO complaint, to which his 1991 memorandum was attached and which characterized that memo as a request for accommodation.

The district court determined that Ballard had not established that he made a timely request for accommodation. The court stated that Ballard's claim was untimely to the extent it was based on his 1991 memo because he failed to bring it within the applicable limitations period. (Order at 21.) Noting that the Rehabilitation Act lacked its own statute of limitations, the court borrowed Missouri's five-year limitations period for personal injury actions and concluded that a "request made more than nine years ago cannot be the basis for a failure-to-accommodate claim." (Id.) The district court also stated that it could not find "any language" in Ballard's 1994 EEO complaint "that can be construed as a request for accommodation." (Id. at 21-22.) The district court did not address the other elements of Ballard's claim.

On appeal, Ballard contends that even if neither his 1991 memo nor his 1994 EEO complaint contained an express request for accommodation, together they constitute a de facto request for accommodation because their content put the IRS on notice that Ballard desired particular accommodations for his disability — namely, a wheelchair and either relief from, or assistance with respect to, business travel. This circuit has not addressed what specific form a request for accommodation must take in order to trigger an employer's obligation to initiate the interactive process. Indeed, the issue was not presented in Fjellestad or other cases where the plaintiffs — who suffered from physical, and thus presumably obvious, disabilities — clearly requested accommodation. Compare Fjellestad, 188 F.3d at 952 (reversing a grant of summary judgment to the employer where the employee, who sustained various physical injuries in a car accident, wrote a grievance...