Dick v. Dickinson State Univ.

• Citation: 32 A.D. Cases 1526,826 F.3d 1054
• Decision Date: 23 June 2016
• Docket Number: No. 15-2419,15-2419
• Parties: Bonnie Dick, Plaintiff–Appellant v. Dickinson State University, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

826 F.3d 1054

32 A.D. Cases 1526

Bonnie Dick, Plaintiff–Appellant

v.Dickinson State University, Defendant–Appellee.

No. 15-2419

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2016

Filed: June 23, 2016

Rehearing Denied Aug. 15, 2016

David Alan Dick, David Dick & Associates, Chandler, AZ, for Plaintiff–Appellant.

Douglas Alan Bahr, Solicitor, Attorney General's Office, Bismarck, ND, for Defendant–Appellee.

Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

BEAM

, Circuit Judge.

Bonnie Dick appeals the district court's¹ grant of summary judgment in favor of her employer, Dickinson State University (DSU), on her Rehabilitation Act claim. In granting summary judgment, the district court held that Dick suffered no adverse employment action by being exposed to the floor-stripping and -waxing products iShine and LOE Stripper (the Products) while employed as a custodian at DSU. For the reasons discussed below, we affirm.

I. BACKGROUND

DSU hired Dick as a custodian in October 2004. In 2006, Dick suffered two seizures believed to have been caused in part by her use of the Products in poorly ventilated areas at work. When she returned to work after recovering from the seizures, she assisted the administrative secretary with routine filing and copying. Eventually there was not enough work, and she was placed on leave. Dick then asked to return to work as a custodian but asked to be excused from using the Products. Her request was granted, and she was relieved of all floor-stripping and -waxing responsibilities for the remainder of her employment. Additionally, the Products were not used in her presence, and DSU provided Dick with a respirator that she refused to wear. It was DSU's goal “to eliminate Dick's exposure to [the Products] during the application process.” At this time, Dick had not requested an accommodation in regard to other products or neurotoxins.

In January 2007, DSU granted a request from Dick to be transferred to the library, which had less vinyl flooring. In 2008, DSU again allowed Dick to transfer to a new location, May Hall, which was mostly carpeted. Despite her transfers, Dick occasionally came into contact with residual smells from areas with floors that had to be stripped and waxed. Dick lists several occasions when she was exposed to the Products after requesting the accommodation: in December 2006 she went into a classroom that had been waxed the night before; in 2007 a bathroom and classroom in the basement of the library were waxed but she avoided the area; during the summer of 2007 spray was used on steps in the library and she had to hold her breath; several times she was forced to pass through areas that had been waxed; and in October 2011 a coworker who was using the Products asked Dick whether he was waxing an area properly. Dick never sought medical attention or reported any of the above-listed incidents. In fact, she did not realize at the time of the exposure that the Products were bothering her. Nonetheless, Dick now contends that she suffered various physical, neurological, and cognitive side effects from repeated exposure to the Products during her employment at DSU.

In 2011, Dick filed an internal grievance for harassment, hostile work environment, and discrimination. An outside investigation determined Dick's claims were baseless. In January 2012, Dick's eyes began to burn after encountering fungicide used in a room at DSU. She then requested an accommodation so that she would not be exposed to any floor products containing neurotoxins. DSU worked with Dick and her doctors to find out which neurotoxins were causing her reactions, but the doctors could not pinpoint the source. In February 2012, Dick filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC), alleging DSU failed to reasonably accommodate her request to be excused from working with the Products. The North Dakota Department of Labor (DOL) conducted an investigation and found that DSU “did not deny [Dick] a reasonable accommodation.” On January 4, 2013, the EEOC fully adopted the North Dakota DOL's findings and notified Dick of her right to sue. In March 2012, Dick fell at her home, was injured, and was unable to work in any capacity. DSU gave her a Family and Medical Leave Act (FMLA) leave of absence and extended leave through June 2014. In 2014, DSU terminated Dick because she was still unable to work.

Dick filed this federal complaint on April 4, 2013, alleging failure to reasonably accommodate her disability under the Americans with Disabilities Act (ADA), constructive discharge, and violation of the North Dakota Human Rights Act. DSU filed a motion to dismiss based on sovereign immunity. The magistrate judge entered a report and recommendation dismissing the complaint without prejudice and subject to leave to amend to allow a claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794

. The report stated, “No other amendments to the complaint should be allowed without a motion to amend and leave of court.” Before the district court acted on the magistrate judge's report, Dick filed an amended complaint, which alleged a violation of the Rehabilitation Act instead of the ADA. The district court adopted the magistrate judge's report and recommendation in its entirety and stated, “[S]he will now be allowed to go forward with the claims alleged in the amended complaint that comply with the findings of the Report and Recommendation.” Dick never sought leave to amend her complaint to include the constructive discharge or North Dakota Human Rights Act claims. On September 30, 2014, DSU moved for summary judgment. The district court granted DSU's motion, holding that Dick failed to prove any adverse employment action to support a Rehabilitation Act claim. Moreover, the district court noted that claims for work injuries, such as exposure to chemicals, are addressed through workers' compensation or through tort liability, not the Rehabilitation Act or the ADA. The district court also dismissed Dick's constructive discharge claim and violation of the North Dakota Human Rights Act because “[u]nder the Report and Recommendation, the Court [had] no subject matter jurisdiction ... due to [DSU's] sovereign immunity.”² Dick now appeals arguing that (1) the district court applied the incorrect statute of limitations to the Rehabilitation Act claim; (2) the record showed she suffered adverse employment action; and (3) granting summary judgment was improper.

II. DISCUSSION

A. Standard of Review

“We review the district court's grant of summary judgment de novo , viewing the evidence in the light most favorable to [Dick].” McMiller v. Metro , 738 F.3d 185, 188 (8th Cir. 2013)

. Summary judgment is proper only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). This court generally will not reverse a grant of summary judgment based on an argument that was not presented below to the trial court. Smith v. City of Des Moines, Iowa , 99 F.3d 1466, 1473 (8th Cir. 1996). And, “we may affirm the district court's grant of summary judgment ‘on any grounds supported by the record.’ ” Evance v. Trumann Health Servs., LLC , 719 F.3d 673, 679 (8th Cir. 2013) (quoting Moyle v. Anderson , 571 F.3d 814, 817 (8th Cir. 2009) ).

B. Statute of Limitations

DSU argues that a six-year statute of limitations should apply to Dick's claims, and Dick does not oppose applying this limitations period.³ The Rehabilitation Act does not have its own statute of limitations, Ballard v. Rubin , 284 F.3d 957, 961 (8th Cir. 2002)

, and North Dakota has not established a statute of limitations for Rehabilitation Act claims. “When a federal law has no statute of limitations, courts may borrow the most closely analogous state statute of limitations, unless doing so would frustrate the policy embodied in the federal law.” Gaona v. Town & Country Credit , 324 F.3d 1050, 1054 (8th Cir. 2003) (quoting Birmingham v. Omaha Sch. Dist. , 220 F.3d 850, 854 (8th Cir. 2000) ). Generally, courts interpret Rehabilitation Act claims as personal injury claims subject to the state's personal injury statute of limitations. Ballard , 284 F.3d at 963. Applying the longest possible limitations period of six years under North Dakota's general personal injury statute, N.D. Cent. Code § 28-01-16, many of Dick's claims would still be time-barred. Dick commenced this action in federal district court on April 4, 2013, over six years after her July 2006 accommodation request not to be exposed to the Products. Additionally, as will be discussed in the following section, there is insufficient evidence to support the contention that Dick suffered any adverse employment action as a result of the alleged incidents, which is necessary for a § 504 Rehabilitation Act claim.

Too, Dick argues that the court failed to consider the entire evidentiary record in its analysis of her claims, especially in regard to her purported hostile work environment claim. We disagree. Dick's only Rehabilitation Act claim alleged in her amended complaint was failure to reasonably accommodate her request to avoid exposure to the Products. For a court to consider the entire record, as Dick requests, the illegal practice must “involve[ ] repeated conduct that takes place ‘over a series of days or perhaps years,’ as opposed to a ‘discrete act[ ]’ that is actionable on its own.” Mercer v. Se. Pa. Transit Auth. , 26 F.Supp.3d 432, 441 (E.D. Pa. 2014)

(second alteration in original) (quoting Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ). A hostile work environment claim, which was not alleged here, would allow full review because it is likely comprised of a series of repeated acts, some of which may fall outside the filing period. However, “[a]n employer's denial of a request for a reasonable accommodation,” which is what Dick alleged here, “is a discrete act of...