Fenney v. Dakota, Minnesota & Eastern R. Co.

• Citation: 327 F.3d 707
• Decision Date: 28 April 2003
• Docket Number: No. 02-1479.,02-1479.
• Parties: Ronald J. FENNEY, Appellant, v. DAKOTA, MINNESOTA & EASTERN RAILROAD COMPANY, Appellee. Equal Employment Opportunity Commission, Amicus on Behalf of the Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

327 F.3d 707

Ronald J. FENNEY, Appellant, v. DAKOTA, MINNESOTA & EASTERN RAILROAD COMPANY, Appellee.

Equal Employment Opportunity Commission, Amicus on Behalf of the Appellant.

No. 02-1479.

United States Court of Appeals, Eighth Circuit.

Submitted: October 11, 2002.

Filed: April 28, 2003.

Rehearing and Rehearing En Banc Denied: May 29, 2003^*.

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Judith Kahn Schermer, argued, Minneapolis, MN, for appellant Ronald Fenney.

Louis Lopez, argued, Washington, DC, (Caren I. Friedman, on the brief), for amicus E.E.O.C.

Brian J. Donahoe, argued, Sioux Falls, SD (Mark E. Salter, on the brief), for appellee Dakota, Minnesota & Eastern R. Co.

Before McMILLIAN, BOWMAN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Ronald J. Fenney, an employee of the Dakota, Minnesota & Eastern Railroad Company ("Dakota"), requested a disability accommodation from Dakota. Dakota refused. After Fenney sued under the Americans with Disabilities Act of 1990 ("ADA") and the Minnesota Human Rights Act ("MHRA"), the District Court granted Dakota's Motion for Summary Judgment. Fenney appealed the District Court's Order. We reverse.

I.

In 1974, while working as an engineer for another railroad, Fenney was involved in a tragic accident. The mishap severed his thumb and most of his middle finger on his right hand. The accident also damaged the radius bone in his right arm. Several operations made the problem worse. Fenney now has limited use of his right hand and arm.

Fenney began his employment with Dakota in 1990. Until the present set of events, he worked as an "on-call" locomotive engineer for Dakota. An on-call engineer performs the same duties as a regular engineer, but can be called at any time to report to work. In between shifts, on-call engineers are guaranteed at least an eight-hour rest period. Dakota notifies these engineers telephonically when they must report for their next shift. Dakota's contract with its union requires that Dakota notify the on-call engineers at least one and one-half hours before they are to arrive at work.

Until 1997, several of Dakota's employees received a call that was earlier than the minimum one and one-half hours required.¹ Employees who needed this advance or "long" call were noted on daily crew calling sheets. These crew sheets also noted the additional amount of time these employees required. Fenney usually received his call two and one-half to three hours ahead of his shift. According to Fenney, this additional time allowed him to bathe, dress, shave, prepare a meal, and drive himself to work on time.

In 1997, the railroad hired new management. Robert Wessler, the new superintendent of transportation, instituted a uniform two-hour advance calling time for all on-call employees. After the new policy was issued, Fenney no longer received a long call. Fenney claims that he requested the additional call time on numerous occasions after Dakota instituted the uniform two-hour call policy. Wessler admitted that Fenney asked him for the accommodation several times. Fenney also made a written requests to his union and to Vernon Colbert, Dakota's new transportation officer. Fenney's union also made a written request to Dakota.² Dakota responded that it would only accommodate Fenney's request if he could show written documentation that Dakota's previous management had "guaranteed" the advance call.

When Dakota refused his requested accommodation, Fenney asked that Dakota assign him to another position with regular hours, rather than risk losing his employment.³ However, because he lacked seniority, the only regular-hours position for which Fenney could qualify was the position of weekend conductor. Conductors have regularly-scheduled work hours, but receive less pay than on-call engineers. In addition, weekend conductors only work four days a week, while on-call engineers work up to seven days a week.

After demoting himself, Fenney filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Following an investigation, the EEOC issued Fenney a right-to-sue letter. Fenney next filed this action, alleging intentional discrimination and a failure to accommodate under the ADA and MHRA. Dakota then filed a motion for summary judgment, which the District Court granted. Fenney appealed.⁴

II.

We review the District Court's grant of summary judgment de novo. Spangler v. Federal Home Loan Bank, 278 F.3d 847, 849 (8th Cir.2002). "Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, shows no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Id.; Fed.R.Civ.Pro. 56(c). We determine materiality from the substantive law governing the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Disputes over facts that might affect the outcome of the lawsuit according to applicable substantive law are material. Id. A material fact dispute is "genuine" if the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party. Id. at 248-49, 106 S.Ct. 2505.

III.

The ADA⁵ mandates that companies like Dakota provide "reasonable accommodations to the known physical ... limitations of an otherwise qualified individual with a disability who is an ... employee, unless [it] can demonstrate that the accommodation would impose an undue hardship." 42 U.S.C. § 12112(b)(5)(A) (1994). To obtain relief under the ADA, Fenney must show that he (1) has a "disability" within the meaning of the ADA, (2) is a "qualified individual" under the ADA, and (3) "suffered an adverse employment action as a result of the disability." Duty v. Norton-Alcoa Proppants, 293 F.3d 481, 490 (8th Cir.2002).

In order to evaluate Fenney's claim, however, we first must clarify the burdens of production and burdens of persuasion in ADA cases. The burden of proof depends on the type of claim that is alleged. If a party alleges a claim of discriminatory disparate treatment, then the traditional burden-shifting framework of McDonnell Douglas will apply. See, e.g., Stanback v. Best Diversified Products, Inc., 180 F.3d 903, 908 n. 6 (8th Cir.1999); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir.1999) (en banc). The plaintiff must initially establish each element of the prima facie case. Kiel, 169 F.3d at 1134. The employer "must then rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for the adverse employment action." Id. at 1135. If the employer does this, then "the burden of production shifts back to the plaintiff to demonstrate that the employer's non-discriminatory reason is pretextual." Id.

However, if a party makes a reasonable accommodation claim, then we apply a modified burden-shifting analysis.⁶ E.g., Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995); see also Dropinski v. Douglas County, 298 F.3d 704, 707-08 (8th Cir.2002); Fjellestad v. Pizza Hut of America, Inc., 188 F.3d 944, 948-53 (8th Cir.1999); Montgomery v. John Deere & Co., 169 F.3d 556, 562-63 (8th Cir.1999) (Lay, J., concurring) (noting that McDonnell Douglas should not apply in an ADA reasonable accommodation claim); Mole v. Buckhorn Rubber Prods., Inc., 165 F.3d 1212, 1219-20 (8th Cir.1999) (Lay, J., dissenting) (same); cf. Mason v. Frank, 32 F.3d 315, 318-19 (8th Cir.1994) (applying the same analysis under the Rehabilitation Act of 1973). Under Benson, a plaintiff "at all times retains the burden of persuading the trier of fact that he has been the victim of illegal discrimination due to his disability." 62 F.3d at 1112 (citations omitted). Thus, he must first make a facial showing that he has an ADA disability and that he has suffered adverse employment action. Then he must make a facial showing that he is a "qualified individual."

To be a "qualified individual" within the meaning of the ADA, an employee must "(1) possess the requisite skill, education, experience, and training for h[is] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation." Heaser v. Toro Co., 247 F.3d 826, 830 (8th Cir.2001). Although the plaintiff retains the ultimate burden of proving that he is a qualified individual, if the employer disputes that the employee can perform the essential functions of the job, then the burden shifts to the employer to "put on some evidence of those essential functions." Benson, 62 F.3d at 1113. This only makes sense because "much of the information which determines those essential functions lies uniquely with the employer." Id.

Further, if the employee cannot perform the essential functions of the job without an accommodation, he must only make a "facial showing that a reasonable accommodation is possible...." Id. at 1112 (emphasis added). "The burden of production [then] shifts to the employer to show that it is unable to accommodate the employee." Id.; Fjellestad, 188 F.3d at 949. "If the employer can show that the employee cannot perform the essential functions of the job even with reasonable accommodation, [then] the employee must rebut that showing with evidence of his individual capabilities." Benson, 62 F.3d at 1113 (citations omitted). "At that point, the employee's burden merges with his ultimate burden of persuading the trier of fact that he has suffered unlawful discrimination." Id. (citations omitted).

Fenney's original pleadings alleged a failure-to-accommodate claim and a disparate treatment claim. See Dakota's Addendum, at 11. From the pleadings, however, it is clear that Fenney has abandoned his disparate treatment claim on appeal; in his briefs he makes no arguments to support it.⁷ Thus, we analyze Fenney's claim under the Benson reasonable accommodation framework. Applying these principles, we conclude that summary judgment is inappropriate.

IV.

A. "Disability"

As a threshold matter, Fenney must...