Tasha McNeil v. Union Pacific Railroad Co ( 2019 )


Menu:
  •               United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-2333
    ___________________________
    Tasha M. McNeil,
    lllllllllllllllllllllPlaintiff - Appellant,
    v.
    Union Pacific Railroad Company,
    lllllllllllllllllllllDefendant - Appellee.
    ------------------------------
    ACLU Nebraska Foundation,
    lllllllllllllllllllllAmicus on Behalf of Appellant.
    ____________
    Appeal from United States District Court
    for the District of Nebraska - Omaha
    ____________
    Submitted: May 16, 2019
    Filed: August 26, 2019
    ____________
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    Tasha McNeil sued Union Pacific Railroad Company, alleging discrimination
    and retaliation in violation of the Americans with Disabilities Act (ADA), Title VII
    of the Civil Rights Act, the Family and Medical Leave Act (FMLA), and the
    Nebraska Fair Employment Practice Act (NFEPA). The district court1 granted
    summary judgment in favor of Union Pacific on all claims. McNeil appeals, and we
    affirm.
    I.
    Tasha McNeil is a black woman who was employed by Union Pacific. She
    worked as a critical call dispatcher in the company’s 24-hour dispatch call center. As
    a dispatcher, McNeil was responsible for “[r]espond[ing] timely and with a sense of
    urgency to incoming phone calls related to critical incidents on or near railroad
    property to ensure employee and public safety.”
    Union Pacific dispatchers are typically scheduled to work five consecutive days
    each week. Each workday consists of an 8.25-hour shift. Only one dispatcher is
    allowed to leave the center at a time, and dispatchers are not allowed to end their shift
    until they are relieved by the next shift’s dispatcher. They are expected to remain to
    resolve ongoing calls even after their shift has ended. A dispatcher’s shift is color-
    coded to represent overtime expectations for the employee. Depending on which
    color shift the dispatcher is scheduled to work, the dispatcher may be expected to
    work overtime if another employee fails to show up to work. In that situation, a
    dispatcher is required to work up to four additional hours either before or after her
    original shift.
    1
    The Honorable Laurie Smith Camp, then Chief Judge, United States District
    Court for the District of Nebraska.
    -2-
    McNeil took short-term disability leave from December 2012 until January
    2013 due to complications from a pregnancy. She then took maternity leave until
    June 17, 2013, when she returned to work. Shortly after her return, she requested
    training to help her readjust to work after six months of leave, but her supervisor
    denied the training. At a later date, McNeil’s supervisor disciplined her for an
    incident that occurred because she was not familiar with the switchboard mapping
    system; McNeil claimed that the incident stemmed from the earlier denial of training.
    In January 2014, the company granted McNeil leave under the Family and
    Medical Leave Act to care for her sick mother. In February 2014, she received short-
    term disability benefits for depression. In May 2014, McNeil’s doctors determined
    that she could return to work in June on a part-time schedule. McNeil’s physician
    cleared her to work four days a week from 6:15 a.m. to 2:30 p.m. Her physician
    specified that the restriction was temporary, and that she would be able to undertake
    a full-time schedule on August 1. Union Pacific prepared to accommodate her
    temporary restrictions, but McNeil ultimately decided not to return and instead
    transitioned to long-term disability leave.
    In August 2014, McNeil notified Union Pacific’s employee benefits
    administrator that she may be ready to return to work on September 2. Three weeks
    later, Union Pacific received McNeil’s medical records and work restrictions. The
    records included a letter from her doctor stating: “It is my professional medical
    opinion that Tasha MCNEIL may return to work on 09/02/2014. Please allow her
    only morning shifts and no overtime.” A Union Pacific employee followed up with
    McNeil about the restrictions, and McNeil told her that she was restricted to “day
    hours only and no overtime until January.”
    The next month, McNeil e-mailed the company to inquire about her work
    status, and an employee informed her that the call center was unable to accommodate
    her restrictions and had no vacancies. A week later, McNeil received a formal letter
    -3-
    from Union Pacific saying that her “supervising department has been unable to
    identify a reasonable accommodation that will permit [her] to safely return to work
    in [her] assigned position.”
    McNeil called a manager seeking information about why Union Pacific denied
    her request to return to work. During the call, she told the manager that her medical
    restrictions were not permanent. The supervisor told McNeil that if that were so, then
    she needed to have her medical provider send a letter informing Union Pacific of her
    updated restrictions. Union Pacific did not receive any updated medical records, and
    McNeil went back on long-term disability leave. On June 24, 2015, McNeil received
    notice that her long-term disability benefits would soon expire. The company
    terminated her employment on October 28, 2015.
    McNeil sued Union Pacific in Nebraska state court, alleging several claims of
    discrimination. Union Pacific removed the proceeding to federal court, see 
    28 U.S.C. § 1441
    (a), and the district court granted summary judgment for the company on all
    claims. Summary judgment is appropriate 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). We review the district court’s grant of summary judgment de novo,
    viewing the evidence in the light most favorable to McNeil.
    II.
    A.
    McNeil challenges the district court’s grant of summary judgment on her
    claims under the ADA and the NFEPA that Union Pacific failed to accommodate her
    disability. The Nebraska statute is coextensive with the ADA in this context, Orr v.
    Wal-Mart Stores, Inc., 
    297 F.3d 720
    , 723 (8th Cir. 2002), and our discussion
    proceeds under the ADA.
    -4-
    The ADA prohibits discrimination “against a qualified individual on the basis
    of disability.” 
    42 U.S.C. § 12112
    (a). Discrimination includes “not making
    reasonable accommodations to the known physical or mental limitations of an
    otherwise qualified individual.” 
    Id.
     § 12112(b)(5)(A). To qualify for a position, the
    employee must be able to “perform the essential functions of such position.” 
    29 C.F.R. § 1630.2
    (m).
    An employer who disputes a failure-to-accommodate claim on the ground that
    the employee could not perform an essential function of the job must establish that
    the function at issue is essential. Dropinski v. Douglas County, 
    298 F.3d 704
    , 707
    (8th Cir. 2002). Relevant factors include “(1) the employer’s judgment as to which
    functions are essential; (2) written job descriptions prepared before advertising or
    interviewing applicants for the job; (3) the amount of time spent on the job
    performing the function; (4) the consequences of not requiring the incumbent to
    perform the function; and (5) the current work experience of incumbents in similar
    jobs.” 
    Id.
     (internal quotation omitted).
    The district court ruled that the ability to work mandatory overtime is an
    essential function of a call center dispatcher. The court concluded that because
    McNeil’s “no overtime” restriction disqualified her from the job, McNeil failed to
    make a prima facie showing that Union Pacific discriminated when it failed to
    accommodate the restriction. The court relied on the company’s scheduling and
    attendance guidelines, which state that overtime is “mandated,” and cited the fact that
    schedules “included multiple layers of redundancy to ensure staff availability for
    overtime work.” The court observed that if a dispatcher were unable to work
    overtime, then either other employees would have to work overtime more often or the
    safety of Union Pacific operations would be impaired.
    McNeil argues that there is a factual dispute about whether the ability to work
    overtime is an essential function. She first contends that Union Pacific’s willingness
    -5-
    to accommodate her “no overtime” restriction in May 2014 shows that ability to work
    overtime is not really an essential function. Union Pacific did prepare to
    accommodate McNeil’s restriction temporarily in May 2014 when the restriction was
    limited to two months. But “[a]n employer does not concede that a job function is
    ‘non-essential’ simply by voluntarily assuming the limited burden associated with a
    temporary accommodation, nor thereby acknowledge that the burden associated with
    a permanent accommodation would not be unduly onerous.” Rehrs v. Iams Co., 
    486 F.3d 353
    , 358 (8th Cir. 2007) (internal quotation omitted). The medical records
    supporting McNeil’s request in September 2014 did not include an end date or
    otherwise specify that the restriction was temporary. The request for a permanent or
    indefinite accommodation presented a different and greater burden on the company.
    Union Pacific’s earlier willingness to accommodate a two-month restriction does not
    create a genuine issue of fact about whether availability for overtime is an essential
    function.
    McNeil complains that her September 2014 request also sought only a short-
    term restriction, but she never presented clarifying medical records to establish that
    fact. The doctor’s letter identified no ending date for the overtime restriction. After
    McNeil told Union Pacific that the restriction would end in January 2015, the
    company told her to have the physician send a communication clarifying the nature
    and duration of the restriction. Yet Union Pacific never received any additional
    information from McNeil’s physician. Union Pacific was thus “entitled to rely and
    act upon the written advice from [McNeil’s] physician” when deciding whether it
    could accommodate her restrictions. Alexander v. Northland Inn, 
    321 F.3d 723
    , 727
    (8th Cir. 2003).
    McNeil next asserts that “mandatory overtime” cannot be an essential function
    of the dispatcher job because Union Pacific has accommodated other employees who
    also had overtime restrictions. Justin Larsen was able to work only “an occasional
    12 hour shift.” Dennis McCabe was limited to working “10 hour days as tolerated.”
    -6-
    Darcey Brinson was limited to “[o]ccasional (up to 33% of the time) early call in or
    overtime.” Although these employees could not be available for up to four hours of
    overtime, as was typically expected, they could work some overtime. They could
    occasionally manage incoming calls that extended beyond a shift change or cover for
    absent employees for some duration on certain occasions. McNeil’s restriction
    allowed none of this activity. Union Pacific’s accommodation of the other employees
    thus does not undermine its position that ability to work mandatory overtime is an
    essential function.
    McNeil also challenges the district court’s failure to consider whether Union
    Pacific violated its duty to engage in the interactive process. To show an employer
    breached its duty to engage in the interactive process, an employee must show “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.” Peyton v. Fred’s Stores of Ark., Inc., 
    561 F.3d 900
    , 902 (8th Cir. 2009)
    (internal quotation omitted). The district court ruled that Union Pacific was not liable
    on this theory because no reasonable accommodation was available. See Battle v.
    United Parcel Serv., Inc., 
    438 F.3d 856
    , 864 (8th Cir. 2006).
    McNeil contends that Union Pacific was required to contact her medical
    provider to determine whether the duration of the restriction was short-term or long-
    term. But McNeil knew that the company believed her restriction was a long-term
    restriction, and she never arranged for a follow-up communication from her doctor.
    Her failure to do so “supports the conclusion that she, not [Union Pacific], stalled the
    interactive process.” Russell v. TG Mo. Corp., 
    340 F.3d 735
    , 741-42 (8th Cir. 2003).
    McNeil also complains that Union Pacific contacted medical providers on
    behalf of another employee and should have done the same for her. Union Pacific did
    -7-
    request clarification when it received notice of the restrictions for employee Darcey
    Brinson. But Brinson’s restrictions, as communicated by her doctor, were inscrutable
    in light of the Union Pacific dispatcher schedule: Brinson’s physician communicated
    that her restriction was “[f]irst shift work only,” but Union Pacific does not have a
    “first shift,” so clarification was required. McNeil’s doctor, by contrast, wrote that
    she was restricted to “no overtime” and gave no ending date. This restriction was not
    unclear on its face, so the company’s failure to make inquiry with McNeil’s doctor
    does not show disparate treatment of McNeil and Brinson.
    McNeil next argues that Union Pacific failed to engage in the interactive
    process because the company did not act in good faith to help her find a different
    position for which she was qualified. But when Union Pacific notified McNeil that
    it could not accommodate her “no overtime” restriction, it also offered to assign a
    member of its “Disability Prevention and Management Team” to help her “develop
    a plan for [her] vocational future.” The staff member would teach McNeil “how to
    access information about [Union Pacific] vacancies,” and “[a]ssist [her] with the
    application process.” The letter informed McNeil that she needed to accept the
    service by calling a toll-free number within thirty days of the letter. McNeil never
    requested this assistance, and her failure to do so forecloses a claim that Union
    Pacific failed to engage.
    For these reasons, we agree with the district court that McNeil was not
    qualified for the dispatcher position as a matter of law, because she was unable to
    work mandatory overtime. We also conclude that there is insufficient evidence to
    create a genuine dispute about whether Union Pacific failed to engage in the
    interactive process. We thus affirm the grant of summary judgment for Union Pacific
    on McNeil’s claims of disability discrimination.
    -8-
    B.
    McNeil also appeals the district court’s grant of summary judgment on her
    claim of discrimination based on sex and pregnancy. The district court ruled that
    McNeil suffered no adverse action when her supervisor denied her requested training
    or commented on the length of her breast pumping breaks, and that the evidence did
    not give rise to an inference of discrimination in any event.
    McNeil asserts that Union Pacific took adverse actions against her when it
    failed to train her upon return from maternity leave and when it failed to
    accommodate her need to pump breast milk. Neither action qualifies. The
    supervisor’s denial of her training request was not “a tangible change in working
    conditions that produces a material employment disadvantage,” Thomas v. Corwin,
    
    483 F.3d 516
    , 528 (8th Cir. 2017) (internal quotation omitted), so it was not an
    adverse employment action. By McNeil’s own admission, Union Pacific did
    accommodate her need to breast pump when she returned from maternity leave, so
    there was no adverse action on that basis either.
    McNeil also contends that the district court erred because it did not consider
    whether Union Pacific’s failure to accommodate McNeil’s disability and the
    company’s termination of her employment were adverse employment actions. She
    has not presented sufficient evidence, however, to show that these actions were
    motivated by sex or pregnancy. She does not identify any valid comparator employee
    who was treated differently. There is no other evidence to undermine the company’s
    position that it acted based on McNeil’s inability to work overtime and the expiration
    of her long-term disability benefits. The district court thus did not err by granting
    summary judgment on McNeil’s sex and pregnancy claim.
    The district court also granted summary judgment on McNeil’s race
    discrimination claim. The court reasoned that her “proffered comparators were all
    -9-
    able to, and did in fact, work overtime,” so they were not employees whose treatment
    might support an inference of discrimination. McNeil presented evidence that Union
    Pacific accommodated three white employees who had some overtime restrictions,
    but those employees were not similarly situated to McNeil. As discussed, Larsen,
    McCabe, and Brinson were all able to work some overtime, while McNeil could not
    provide any overtime work. McNeil argues that these comparators were similarly
    situated because they never actually worked overtime. The essential function,
    however, was the availability to work overtime. The restrictions of each of these
    employees allowed the company to schedule them to work some measure of overtime
    if necessary, while McNeil was entirely unavailable. The district court properly
    granted summary judgment on the race discrimination claim.
    McNeil briefly mentions her two retaliation claims but does not develop any
    argument about why the district court allegedly erred in dismissing them.
    Accordingly, those claims are not presented on appeal.
    *       *      *
    The judgment of the district court is affirmed.
    ______________________________
    -10-